House of the Good Samaritan

National Labor Relations Board - Board Decisions

Mar 18, 1980

248 N.L.R.B. 539 (N.L.R.B. 1980)

HOUSE OF THE GOOD SAMARITAN 539
The House of the Good Samaritan and the Samari-
tan-Keep Nursing Home, Inc. and Licensed
Practical Nurses and Technicians of New York,
Inc., Local 721, S.E.I.U., AFL-CIO. Case 3-
CA-8596
March 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 13, 1979, Administrative Law
Judge George Norman issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge,
as modified herein, and to adopt his recommended
Order.
This case presents the identical issue considered
in Aurelia Osborn Fox Memorial Hospital.3 In Fox
Memorial Hospital, we found that the affiliation be-
tween LPNNY and S.E.I.U., AFL-CIO, effected
"no substantial change, if any," in the representa-
tion of the bargaining unit employees so that no
question concerning representation arose. We also
restated the principle that where, as here, complete
continuity in representation has been maintained, a
separate vote for affiliation by Respondent's em-
ployees is not required.4 Thus, for the reasons set
forth in Fox Memorial Hospital, we adopt the Ad-
ministrative Law Judge's finding that no question
concerning representation exists and that by refus-
I Respondent's request for oral argument is hereby denied as the
record, exceptions, and briefs adequately present the issues and positions
of the parties.
a Respondent excepts, inter alia, to the Administrative Law Judge's
factual finding that the Jefferson County Division (JCD) delegates were
selected at the March 1978 division meeting, contending that JCD Presi-
dent McQueer selected some of the delegates after that meeting and that
such selection did not comport with general standards of due process. Al-
though the record shows that some delegates in fact were chosen after
the March meeting, it is our opinion that the selection did not constitute
a denial of due process to the membership, particularly since no member
objected to the selection of the delegates.
Respondent also excepts to the Administrative Law Judge's factual
finding that former JCD President DiMienco introduced the subject of
affiliation at the March 1978 meeting, contending that DiMienco was not
present at that meeting Since the record indicates DiMienco was refer-
ring to the February 1978 meeting in his testimony on this matter, we
hereby note and correct the Administrative L.av Judge's apparently inad-
vertent error, which in no way affects our decision here
1 247 NLRB No. 43 (1980).
4 See also American Enka Company, a Divlsion of Akzona Incorporated,
231 NLRB 1335 (1977)
248 NLRB No. 48
ing to bargain with Licensed Practical Nurses and
Technicians of New York, Inc., Local 721,
S.E.I.U., Respondent violated Section 8(a)(5) of the
Act. 5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, The House of
Good Samaritan and The Samaritan-Keep Nursing
Home, Inc., Watertown, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
I We also note that for 2 years Respondent here, unlike in Fox Memo-
rial Hospital supra, knew of the temporary affiliation agreement between
LPNNY and the S.E I.U, and yet continued to recognize and bargain
with the Union
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
matter was heard at Watertown, New York, beginning
November 16, 1978, and closing on February 7, 1979. It
is based on a charge filed July 14, 1978, by Licensed
Practical Nurses and Technicians of New York, Inc.,
Local 721, S.E.I.U., AFL-CIO (herein called LPN-
TECH, or the Union). On August 21, 1978, the Acting
Regional Director for Region 3 of the National Labor
Relations Board (herein called the Board), on behalf of
the General Counsel of the Board, issued a complaint
and notice of hearing. The complaint alleged violations
by The House of the Good Samaritan and The Samari-
tan-Keep Nursing Home, Inc. (herein called Respon-
dent), of Section 8(a)(t) and (5) of the National Labor
Relations Act (herein called the Act).
Respondent's answer, in substance, denied the commis-
sion of any unfair labor practices, claiming that LPN-
TECH is not the duly authorized bargaining representa-
tives of Respondent's employees and does not represent a
majority of said employees.
Upon the entire record in this case, from my observa-
tion of the witnesses and their demeanor, and after due
consideration of the briefs filed by Respondent and the
General Counsel, I make the following:
FINDINGS AND CONCLUSIONS
The following findings of fact are based upon a con-
sideration of the entire record. In addition, credibility
resolutions have been derived in large part from impres-
sions which the various witnesses made upon me at the
hearing. To the extent that the testimony of any wit-
nesses are not consistent with the findings made, that tes-
timony is not credited.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. RESPONDENT'S BUSINESS
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State of New York.
At all times material herein, Respondent has maintained
its office and place of business at Washington and Pratt
Streets in the city of Watertown, New York, and is and
has been at all times material herein engaged in the busi-
ness of providing and performing health care and related
services. Respondent's office and place of business above
is the only facility involved in this proceeding. In the
course and conduct of its business operations, Respon-
dent annually provides health care and related services, a
gross value of which exceeds $250,000. During the same
period of time Respondent received goods valued in
excess of $1,000 transported to its place of business in in-
terstate commerce directly from States of the United
States other than the State of New York. Respondent
admits and I find that it is and has been, at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATIONS
LPN-TECH is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
The Licensed Practical Nurses of New York, Inc., was
at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
Service Employees International 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
In September 1974, the majority of the employees of
Respondent in the following unit, by a secret-ballot elec-
tion conducted by the New York State Labor Relations
Board, designated and selected Licensed Practical Nurses
of New York, Inc. (herein called LPNNY), as their rep-
resentative for the purpose of collective bargaining with
Respondent, and on or about September 13, 1974, the
New York State Labor Relations Board certified
LPNNY as the exclusive bargaining representative of the
employees in said unit:
All full-time and regular part-time licensed practical
nurses, including graduate licensed practical nurses
permitted to practice as licensed practical nurses
(excluding supervisors, technical employees, clerical
employees, service and maintenance employees,
RN's and all others), employed by The House of
the Good Samaritan and The Samaritan-Keep Nurs-
ing Home, Inc., 830 Washington Avenue and 133
Pratt Street, Watertown, New York.
Since the date of certification, Respondent has recog-
nized and bargained collectively with LPNNY as the ex-
clusive bargaining representative of the employees in the
unit described above and entered into successive collec-
tive-bargaining agreements with LPNNY, covering those
employees, the most recent of which expired August 31,
1978.
Although the certified representative of Respondent's
employees was LPNNY, a statewide labor organization,
the actual day-to-day representation was carried out
through the Jefferson County Division of LPNNY. The
Jefferson County Division had 108 members which was
approximately the number of LPNs employed by Re-
spondent. The Jefferson County Division negotiated its
own contracts with Respondent and processed its own
grievances.
Sylvia J. Allison, president of LPN-TECH, and a rep-
resentative from that Local on the International Board of
SEIU, testified that LPNNY in early 1976 was threat-
ened with raids from other unions who were seeking to
represent employees who are represented by LPNNY,
and in New York City, under a public collective-bargain-
ing scheme, the LPNNY was going to be forced to bar-
gain along with several other labor organizations. She
testified that LPNNY was notified that it was one of
those small groups which was going to be combined into
a unit with other unions which would have resulted in a
loss of identity and an inability to provide effective rep-
resentation for its members. SEIU, according to Allision,
was selected by the executive board of LPNNY for af-
filiation because, by affiliating with SEIU, LPNNY
would be able to maintain its identity; do its own collec-
tive bargaining; function independently; retain its board;
and generally operate as it had in the past, without
change. In addition, by affiliating with an AFL-CIO or-
ganization LPNNY would be protected from raids from
other AFL-CIO unions, and by affiliating with an inter-
national labor organization LPNNY would be entitled to
maintain its independence in negotiations in New York
City.
In early 1976, the Jefferson County division selected
delegates and alternates for the 1976 annual convention
of LPNNY pursuant to article 13 of the LPNNY bylaws.
The matter of affiliation between LPNNY and SEIU had
not yet been presented to the membership.
At the May 1976 state convention of LPNNY, the del-
egates were given a thorough briefing as to the need for
affiliation and its effect. Michael DiMienco, then presi-
dent of the Jefferson County division, testified that at the
convention two speakers addressed the delegates on the
subject of affiliation. They were Robert Silagi, attorney
for LPNNY, who was instrumental in drafting the tem-
porary or trial affiliation agreement, and Pearl Raisen,
who was the president of LPNNY at that time. The
speakers told the assembled delegates that there were
two reasons for the need for affiliation: (1) that the affili-
ation would give LPNNY more power and backing, and
(2) the affiliation with SEIU would help protect LPNNY
from the problem in New York City, previously dis-
cussed. Allison further testified that it was explained to
the delegates that by adopting the affiliation with SEIU
Art. V of the bylaws of Licensed Practical Nurses of New York,
Inc., provides that membership of county divisions shall be composed of
licensed practical nurses and technicians. It also provides, among other
things, that a county division must have a membership of not less than 15
members; have adopted the provisions and bylaws of Licensed Practical
Nurses of New York, Inc,; pay on a per capita basis to Licensed Practical
Nurses of New York, Inc, annual membership dues for the state and na-
tional federation; and submit data as may be requested by the executive
board of Licensed Practical Nurses of New York, Inc.
HOUSE OF THE GOOD SAMARITAN 541
LPNNY would be able to retain its autonomy. She said
that there were extensive discussions among the dele-
gates as to the need for affiliation. Many questions were
asked by the delegates and answered prior to there being
a vote. She stated, in addition, that the delegates did not
feel there was any pressure being placed on them to vote
in favor of affiliation.
The proposed temporary or trial affiliation agreement
was circulated to the delegates for their review and a
lengthy discussion took place concerning it. No SEIU
representatives were present at those discussions. A vote
for adopting the agreement was carried, with one "No"
vote.
The temporary or trial affiliation agreement was ex-
ecuted on May 11, 1976. Paragraph 5 thereof provides in
part that "until May 31, 1978, the succession, dissolution
or disaffiliation from SEIU may be voted by the mem-
bership of LPNNY at any annual convention or special
convention that is called for that purpose. Paragraph 6 of
the temporary affiliation agreement provided as follows:
At all times, whether during the period of affiliation
with SEIU or at any other time, LPNNY shall
retain its identity consistent with its own principles
and policies and have full autonomy as a local
union in accordance with the provisions of the In-
ternational Constitution and By-laws of SEIU.
LPNNY's autonomy shall include, but is not limited
to, the right to establish its own by-laws, its own
dues structure, select its own staff, call a legal strike
by its membership, vote, make its own decisions re-
garding contracts and economic actions by vote of
its own membership, retain professional services in-
cluding accountants and attorneys, as well as make
policy determinations concerning LPNNY. In that
regard, SEIU hereby waives the provisions of Arti-
cle VIII, Section (f) insofar as it pertains to the au-
thority of the president of SEIU to negotiate a col-
lective bargaining agreement for LPNNY, except
when requested to do so by LPNNY.
After the 1976 state convention, Michael DiMienco
made a report to the membership of the Jefferson
County division at a division meeting. He described then
what had occurred concerning affiliation at the conven-
tion and why. In addition, all members of LPNNY re-
ceived a copy of the New York LPN magazine, which
described the temporary affiliation agreement with
SEIU, which had been approved at the 1976 state con-
vention.
Respondent had notice of the 1976 temporary affili-
ation agreement and its effect. Alfreda Shippee, who was
president of the Jefferson County division of LPNNY
before DiMienco, was a delegate to the 1976 state con-
vention. As a delegate, she cast her vote in favor of the
affiliation with SEIU. Following the 1976 LPNNY con-
vention, Alfreda Shippee took part in negotiations with
the Jefferson County division as a member of manage-
ment's negotiation team.2 Michael DiMienco testified
2 The 1976 negotiations resulted in a collective-bargaining agreement
between the parties which was in effect from September 1, 1976, through
that around the time of the 1976 negotiations he had at
least one discussion with Thomas Pilgemeyer, personnel
manager of Respondent, concerning the affiliation of
LPNNY with SEIU.
Under the 1976 temporary affiliation agreement no
changes were made in the number of local officers in the
Jefferson County division or their control over the bank
accounts of the division. Nor was there an audit of the
Jefferson County division assets conducted by represen-
tatives of the SEIU. 3 Negotiations were conducted in
the same manner before and after the 1976 affiliation and
by the same people. No representatives from SEIU
played a role in negotiations for LPNNY.
In March 1978, the Jefferson County division held a
division meeting at which delegates were selected for the
upcoming annual 1978 LPNNY convention. In accor-
dance with past practice, postcards were sent to mem-
bers informing them of the time, the date, and location of
the meeting. In addition, a notice was posted at Respon-
dent's facility in several locations as another means of in-
forming the employees of the upcoming meeting. The
Jefferson County division is entitled to five delegates and
five alternates under the LPNNY bylaws. At the March
1978 meeting, only 3 or 4 persons out of the 8 or 10 in
attendance 4 expressed interest in being delegates to the
convention. As each person was asked by the president,
Harriet McQueer, if he or she would be willing to serve
as a delegate, upon an expression of willingness by the
individual, the membership at the meeting approved that
person as a delegate. At the March 1978 meeting, Mi-
chael DiMienco brought up the subject of affiliation but
apparently no discussion took place concerning it at that
meeting.
The April 6, 1978, Jefferson County division
meeting
Approximately 2 weeks before the scheduled April 6,
1978, meeting of the Jefferson County division, Debra
Dowe, secretary for the Jefferson County division, sent
postcards to all members of the Jefferson County divi-
sion notifying them of the upcoming meeting. Contrary
to the secretary's normal practice, she placed on the
postcards the words "Important meeting, please attend!"
with an asterisk at the beginning of these words. Dowe
also posted notices on the bulletin boards at The House
of the Good Samaritan and The Samaritan-Keep Nursing
Home, Inc., notifying unit employees of the upcoming
meeting and that it was an important meeting and that all
nurses were urged to attend. The notices read, "Impor-
tant meeting. Please attend."
The April 1978 meeting was attended by a larger than
usual number of licensed practical nurses, 31 of whom
signed their names on the attendance list. The minutes of
August 31, 1978. Respondent admitted that Shippee was and is a supervi-
sor within the meaning of the Act.
The parties stipulated that the number of offices in the Jefferson
County division did not change as a result of the 1976 affiliation agree-
ment; that the assets of LPNNY at the time of the affiliation did not
change after the affiliation; and that the people who exercised control
over those assets remained the same.
I Betvween 10 and 15 persons would normally attend these monthly
meetings. Business was carried on in this manner even though that
number was only a fraction of the 108 members
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that meeting reveal that many other licensed practical
nurses were present, but had not signed the attendance
list.5 Robert Smith, employed by LPN-TECH, Local
721, S.E.I.U., AFL-CIO, as a field representative, testi-
fied that he attended the April 1978 meeting and recalled
that the subject of permanent affiliation with SEIU was
discussed. He corroborated DiMienco's testimony that
Mrs. Wilber, the other union field representative,
brought up the subject. He said that no one present at
the April meeting expressed opposition to permanent af-
filiation. He said the upcoming annual convention was
discussed in connection with the issue of permanent af-
filiation.
Harriet McQueer testified that Jennie Wilber raised the
subject of affiliation at the April 6 meeting. She said that
Jennie Wilber was asked by someone present at that
meeting if permanent affiliation meant the dues would be
raised. She said that Wilber replied that there would not
be an increase in dues but that would be decided at the
convention, if necessary. McQueer was asked whether
she conducted the meeting according to Robert's Rules
of Order and she said she did not conduct any meetings
according to Robert's Rules of Order. She said that the
meetings were usually attended by a small group and
that business was conducted on a "very informal" basis.
She said that nobody at the meeting requested that a
vote be taken on the subject of affiliation and no normal
vote, either secret ballot or counting of hands, was
taken.
Jennie Wilber testified she attended the April 6, 1978,
meeting and that she had brought up the topic of a per-
manent affiliation. She said there was much discussion
about permanent affiliation after she had indicated that
permanent affiliation would be voted on at the upcoming
state convention. She said that she had gathered from the
discussions that the sentiment was largely in favor of
permanent affiliation.
Fern Fargo's testimony substantially corroborated the
foregoing with respect to the discussion of permanent af-
filiation at the April 6, 1978, meeting.
Respondent's two witnesses, Charlene Matice, and Al-
freda Shippee, testified that they attended the April 6,
1978, Jefferson County division meeting. Matice said she
did not recall any discussion of the affiliation at the April
1978 meeting but admitted on cross-examination that she
sat beside Eva Picco and others that she knew and en-
A greater than usual attendance at the April 6, 1978, meeting demon-
strated that the Jefferson County division was successful in its effort to
notify the unit members of the significance of that meeting. Michael Di-
Mienco testified that at the April meeting the subject of affiliation with
the SEIU was brought up by Jennie Wilber who stated the advantages of
affiliating on a permanent basis as opposed to the temporary affiliation.
She also said that they would lose strength in New York City if the
LPNNY disaffiliated. DiMienco also said that the whole room was in an
uproar, talking mostly in favor of affiliation and that he did not recall
anyone speaking in opposition to permanent affiliation. At the time of the
April 1978 meeting, DiMienco was a member and past president and
Harriet McQueer was the president. DiMienco said that he would have
put the question of permanent affiliation to a formal vote had he been
president at the time, but that it was not McQueer's practice to be that
"formal" and business during her stewardship was conducted on a "gen-
eral consensus" basis. DiMienco stated further that while he was presi-
dent he asked for a showing of hands as a means of voting on a particular
issue but that the election of officers was conducted by secret ballot, pur-
suant to the bylaws.
gaged in various conversations with them during the
course of the meeting. Her memory was not good as to
whether people were called upon by name to speak at
that meeting.
Shippee testified that, other than a discussion about the
new contract, she did not recall what was discussed at
the April 6 meeting. She said she visited a lot with
"Jennie" (Wilber) that night because she had not seen
her for a while and she also said that she (Shippee) was
not paying much attention because she "really wasn't a
member." She said she did more friendly visiting than
paying attention to the meeting and that she had no rec-
ollection of any discussion at the meeting about two li-
censed practical nurses whom she admitted knowing,
Diane Machon and Bonnie Bray. (The official minutes of
the April 6, 1978, meeting revealed that both persons
were discussed by name at that meeting.) 6
The LPNNY 1978 annual convention
On May 21-25, 1978, the annual state convention of
LPNNY took place in New York City. Mrs. Sylvia Alli-
son, president of LPNNY, addressed the delegates, after
which they were given an opportunity to ask any ques-
tions on the issue of permanent affiliation before the
voting. Many questions were asked and answered follow-
ing which President Allison called for a vote. Those in
favor were asked to stand. Thereafter, those who op-
posed were given an opportunity to stand. The vote was
unanimous in favor of permanent affiliation with SEIU.
The name of LPNNY was changed at the convention to
Licensed Practical Nurses and Technicians of New
York, Inc.
After the 1978 convention, the members of LPN-
TECH were sent the LPN Professional Magazine which
informed them that the affiliation vote at the 1978 con-
vention was unanimous in favor of permanent affiliation
with SEIU. The magazine listed the officers and staff
who were either elected at the 1978 convention or
whose terms were extended. The list of officers and di-
rectors reveals that all the officers of LPNNY who were
officers before the 1978 convention remained as officers
after. Except for three, the directors remained the same.
Negotiations for a new contract
On March 21, 1978, Robert E. Smith, field representa-
tive for LPNNY, informed Respondent that LPNNY
wished to renegotiate the contract which was about to
expire. On April 3, 1978, Thomas Pilgemeyer, director of
personnel for Respondent, wrote to Smith suggesting
dates for the first negotiation session. On May 5, 1978,
representatives for Respondent and LPNNY met for the
first negotiation session. Alfreda Shippee was again one
6 Since neither Matice nor Shippee recalled any discussion concerning
permanent affiliation at the April 6, 1978, meeting because of the poor
memory of both and Shippee's admitted lack of interest because she was
a member of management, I do not consider either a reliable witness with
respect to whether the discussion of permanent affiliation took place at
the April 6 meeting. I credit the overwhelming preponderance of evi-
dence through the consistent testimony of all of the General Counsel's
witnesses and find that a discussion of the question of affiliation did,
indeed, take place at the April 6 meeting, and that the sentiment ex-
pressed by those in attendance was pro-permanent affiliation with no ex-
pression of opposition to it
HOUSE OF THE GOOD SAMARITAN 543
of the negotiating team members for Respondent. At that
session many of LPNNY's proposals were agreed to by
Respondent. A second negotiation session was held on
June 5, 1978. No negotiations took place at the second
bargaining session, and although further negotiation ses-
sions were scheduled Respondent refused to meet with
the Union and, as admitted in its answer, Respondent has
continued to refuse to meet and bargain with the Union.
In September 1978, Respondent stopped deducting
dues from its employees for payment to the Union. And
in of spite no dues checkoff, as of January 12, 1979, ac-
cording to the testimony of the president of the local,
only 13 employees, among approximately 108 members
of the Union, had not paid dues. Local President
McQueer also testified that 16 employees have applied
for membership in the Union since Respondent's refusal
to bargain.7
The petition (G.C. Exh. 5) discussed in the previous
footnote contains 105 signatures and, as of the date of
the petition, Respondent employed 151 LPNs. 8 At the
hearing, Respondent showed that the 105 signatures in-
cluded some nonemployees, duplicate names of employ-
ees, and a few LPNs that Respondent claimed were not
in the unit. However, the total of the challenged and du-
plicate names would not affect the majority expression in
favor of permanent affiliation. The after-the-fact expres-
sion is given some weight but not controlling weight
herein.
Discussion and conclusions
The main concerns, or the decisive issues, in this case
are (1) whether the employees of Respondent are being
compelled to be represented by a union not of their own
choosing, and (2) whether there is a substantial continu-
ity between the predecessor and successor unions. Thus,
if the employees were not in favor of permanent affili-
ation or if the affiliation substituted "a different" union
for the certified representative, the employer would not
be obligated to recognize and bargain with that successor
labor organization as the exclusive collective-bargaining
representative of its employees. A factual determination
must be made as to whether the successor labor organi-
zation is the employees' choice for a representative
within the meaning of Section 9(a) of the Act. American
Enka Company, 231 NLRB 1335 (1977). Expressed dif-
ferently, the question here is whether the Union is the
7 G.C. Eh. 5 is a document consisting of 14 pages, each of which is
headed, "Licensed Practical Nurses and Technicians of New York, Inc.,
Local 721, Service Employees International Union, AFL-CIO," with a
New York address and telephone number and a Syracuse address and
telephone number. It is dated September 7, 1978, and each page reads,
"We the undersigned employed as LPN's [atl Good Samaritan Hospital
and Samaritan-Keep Home in Watertown, New York, do hereby approve
the action taken at the Licensed Practical Nurses of New York, Inc.,
annual convention held in May of 1978, to permanently affiliate with the
Service Employees International Union and change our name to Li-
censed Practical Nurses and Technicians of New York, Inc., Local 721,
Service Employees International Union, AFL-CIO, CLC." There is also
a name and address heading on each page containing several handwritten
names and addresses of Respondent's employees under it
I Respondent offered the Union a secret-ballot election conducted by
the American Arbitration Association to determine Respondent's employ-
ees' wishes with respect to affiliation. Local 721 refused Respondent's
offer.
same organization with only external changes in appear-
ance or whether it is a new organization. If the employ-
ees' own organization remains substantially the same,
change in name without much more is immaterial.
Here, the facts demonstrate that the change of affili-
ation is little more than a change in name. It is true that,
in affiliating with SEIU, LPNNY is now part of an
AFL-CIO International Union, but the affiliation had
little effect on the continuity of the internal organization
of LPNNY. All assets of the Jefferson County division
remained with it as Local 721, LPN-TECH. All obliga-
tions of LPNNY Jefferson County division were as-
sumed by the latter. Memberships were continued with-
out formality, and the officers remained the same as
before affiliation, except for three directors.
As for the employees' choice, the affiliation in this
case had been considered and discussed since the tempo-
rary affiliation agreement was entered into in 1976.
During that period the employees were apprised that the
affiliation was being considered. They knew why
LPNNY considered affiliation necessary, to prevent a
raid on their membership and to strengthen the Union's
bargaining position. In sum, the successor union re-
mained virtually the same representative of Respondent's
employees as LPNNY. Thus, I find that there was more
than a substantial continuity between the predecessor
union and the successor and the requirements of National
Carbon Company, 116 NLRB 488 (1956), enfd. 224 F.2d
672 (6th Cir. 1957); and New England Foundry Corpora-
tion, 192 NLRB 785 (1971), have been met.
It is also significant that Harriet McQueer, who repre-
sented the Jefferson County division, LPNNY, as a dele-
gate along with other employees of Respondent who
were delegates at the 1978 convention at which affili-
ation was unanimously approved, was, at the time of the
proceedings in this case, still president of the Jefferson
County division, LPNNY-now called Local 721, LPN-
TECH. It appears, therefore, in view of the employees'
knowledge of and participation in the affiliation process,
and in view of the absence of any indication of employer
opposition thereto, that the employees' "basic statutory
right to express their choice" as the court stated in
Dickie v. N.L.R.B., 218 F.2d 52 (6th Cir.), was expressed
in favor of affiliation and of represensation by the affili-
ated organization. The affiliation appears to have made
virtually no impact upon the individual employee-mem-
bers of LPNNY.
The employees were afforded due process
Respondent points out that in the only vote recorded
in the matter Respondent's employee LPNs9 rejected af-
filiation with SEIU unanimously in 1975. The minutes of
the October 2, 1975, meeting revealed that a letter was
read to those who attended regarding a proposal that
LPNS be included with technicians, thereby giving the
LPNs more strength. The minutes of that meeting read,
in part, as follows:
This deal involves becoming part of a Union, SEIU,
Service Employees International Union.
g Licensed practical nurses
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was voted by majority of attending members
not to become a party to this. Hazel Stacey and
Marietta Tout, will attend the national convention
as our delegates and vote negatively to becoming a
part of the union, SEIU.
The minutes also indicated that 16 persons attended that
meeting. That may have been the sentiment of the mem-
bership attending the meeting in 1975, but in 1976 Jeffer-
son County division of LPNNY voted to affiliate on a
temporary 2-year basis with the SEIU, and in 1978 the
LPNNY convention unanimously voted to permanently
affiliate with SEIU. t °
Respondent further contends that the delegates were
not eligible under LPNNY bylaws articles XI and XIII,
were not picked by the rank-and-file, were not instructed
by LPNs on their wishes, and voted to affiliate with
SEIU in a public vote without opportunity for a secret
ballot. Respondent merely alleges, and offers no proof,
that the delegates selected to represent the Jefferson
County division were not eligible to vote. After advertis-
ing to the unit members of the upcoming important
meeting, a small percentage of the membership chose to
attend. At the meeting, as indicated previously, President
Harriet McQueer asked for volunteers to attend the
annual convention as delegates. As individual members
volunteered, McQueer, with the consent of those attend-
ing and with no opposition, selected herself and four
other volunteers to attend as delegates. In the circurn-
stances, I do not find either a substantive violation of the
bylaws or a denial of due process to the membership
who were given ample opportunity to appear and ex-
press their desires in the matter.
Respondent also points out that, even though the
county was entitled to five alternates, only two were
designated to serve in that capacity. I do not find that
the selection of two alternates when the division was
"entitled" to five, in the circumstances, constitutes a
denial of due process to the membership. I also find that
during the April meeting there was indeed an instruction
by the membership who attended without opposition that
the delegates were to vote for permanent affiliation with
the SEIU at the upcoming annual convention. In the cir-
cumstances, I do not find the absence of a secret ballot
on the matter either in violation of the bylaws or a
denial of due process. It is also noted that no one at the
April meeting requested or moved for a secret ballot.
In The tHamilton Tool Company, 190 NLRB 571 (1971),
the question was whether the failure of the Union to
strictly follow Robert's Rules of Order invalidated an af-
filiation vote. The Board upheld the vote noting that it
"does not normally concern itself with determining
whether a membership meeting was held in strict confor-
mity with the Union's constitution and bylaws absent a
clear showing . . . of substantial irregularity." In that
case the Board cited Gates City Optical Company, etc.,
175 NLRB 1059, fn. 3 (1969).
10 it is noted that there is no evidence that any other county division
of LPNNY has been challenged by any other employer with whom
LPNNY has had collective-bargaining relationships on the matter of em-
ployee-member choice or continuity of organization following affiliation
With respect to the number of members present at the
Jefferson County division meetings, suggesting that there
was the absence of a quorum under section 64 of Rob-
ert's Rules of Order, the minutes of the Jefferson County
division and the testimony reflect that for at least the
past several years the Jefferson County division has aver-
aged approximately 10 to 15 members at each division
meeting. And even though such a small number does not
constitute a majority of membership of 108, the practice
of the division over the past several years to conduct
business without a majority of the members demonstrates
that the Jefferson County division has modified (de facto)
the quorum provision to comport with the average atten-
dance. East Dayton Tool & Die Company, 190 NLRB 577
(1971).
Respondent also contends that only sketchy informa-
tion about the proposed affiliation was given to the rank-
and-file employees at a meeting called for other pur-
poses, and in which no vote was taken "under interfer-
ence of a supervisor who was an obvious friend of an im-
portant SEIU field agent, the featured guest." As previ-
ously indicated, that supervisor, Alfreda Shippee, testi-
fied on behalf of Respondent. Her memory of the meet-
ing in question was poor and I therefore do not credit
her. She did not recall that the field agent of SEIU,
Jennie Wilber, spoke to the members at that meeting
about the affiliation. By the time of that meeting the
question of permanent affiliation was on the minds of the
membership since 1976, the date the state convention ap-
proved the temporary or trial affiliation. Respondent's
contention that "at best, only sketchy information about
the proposals of affiliation was given to rank-and-file at
that meeting" is not supported by the evidence. More-
over, the meeting was not called, as alleged by Respon-
dent, "for other purposes."
Finally, Respondent points out that "even the presi-
dent of the HGS/SKHLPN Unit had no prior knowl-
edge of the state convention action on preliminary "tem-
porary affiliation" in 1976. In that connection former
President Michael DiMienco did indeed testify that he
had no prior knowledge that the state convention would
either take up or vote on the matter of "temporary affili-
ation" in 1976. Nevertheless, the matter of "affiliation"
was in the minds of the membership as early as October
1975, and the fact that President DiMienco had no prior
knowledge of the state convention action on preliminary
temporary affiliation in 1976 is of little consequence. The
fact of the matter is temporary affiliation was considered
and voted on at the state convention and a report was
made to the membership by DiMienco shortly following
the 1976 convention. Thus, for at least approximately 3
years, "affiliation" was a concern of the membership.
It is evident from the foregoing that the affiliation
with the SEIU was contemplated and discussed by the
LPNNY, including the Jefferson County division for a
period of years; that the Jefferson County division of
LPNNY, comprised of Respondent's employees, had an
opportunity to participate and indeed did participate in
the deliberations regarding the question of whether to
permanently affiliate. The affiliation with the SEIU
therefore did not constitute, as described in Respondent's
brief, a part of a "Cabal lead by Ms. McQueer which
HOUSE OF THE GOOD SAMARITAN 545
conducts and directs union business." On the contrary, it
was accomplished in a democratic manner, with the
knowledge, participation, and apparent approval both in
the planning stages and on the decisive vote of rank-and-
file members, including the delegates and alternates who
represented Respondent's employees at the 1978 LPNNY
convention.
The refusal to bargain
Respondent had knowledge of the 1976 temporary af-
filiation agreement through Alfreda Shippee and Thomas
Pilgemeyer. With this knowledge, Respondent negotiated
a new contract with the Union in 1976. And from that
date until June 1978, Respondent recognized and bar-
gained with the Union and deducted dues which in part
went to SEIU under the temporary affiliation agreement.
It was not until 2 years after the temporary affiliation
agreement had been in effect that Respondent questioned
its obligation to bargain.
Although the doctrine of estoppel does not strictly
apply in that it was a temporary affiliation agreement
rather than a permanent one, Respondent did let the
Union believe by its silence in the matter and the con-
tinuance of its recognition and bargaining with the Union
that it had no doubt as to the affiliation nor the manner
in wich it was effected. With respect to the latter, it is
safe to say that if the Union suspected that Respondent
would scrutinize the voting procedure as it did it may
have altered its affiliation procedure to comport with
Respondent's criticism of the 1976 vote. However, Re-
spondent recognized the affiliation for 2 years, albeit a
temporary affiliation, and then challenged it at the expi-
ration of the collective-bargaining agreement in 1978.
I therefore conclude that, by refusing to recognize and
bargain with LPN-TECH, Respondent is in violation of
Section 8(a)(5) and (1) of the Act. I shall therefore rec-
ommend to the Board that an Order issue requiring Re-
spondent to recognize and bargain with the Union upon
request.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices prohibited by Section 8(a)(1) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record herein, I make the following:
CONCIUSIONS OF LAW
1. The House of the Good Samaritan and The Samari-
tan-Keep Nursing Home, Inc., is now, 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.
2. All full-time and regular part-time licensed practical
nurses, including graduate licensed practical nurses per-
mitted to practice as licensed practical nurses (excluding
supervisors, technical employees, clerical employees, ser-
vice and maintenance employees, RNs, and all others),
employed by The House of the Good Samaritan and the
Samaritan-Keep Nursing Home, Inc., 830 Washington
Avenue and 133 Pratt Street, Watertown, New York.
3. Licensed Practical Nurses and Technicians of New
York, Inc., Local 721, S.E.I.U., AFL-CIO, is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
4. The Licensed Practical Nurses of New York, Inc.,
was at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
5. Service Employees International Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
6. By refusing to recognize Licensed Practical Nurses
and Technicians of New York, Inc., Local 721, S.E.I.U.,
AFL-CIO, as the collective-bargaining representative of
Respondent's employees in the foregoing bargaining unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following
recommended:
ORDER "
The Respondent, The House of the Good Samaritan
and The Samaritan-Keep Nursing Home, Inc., Water-
town, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Licensed Practical Nurses and Technicians of New
York, Inc., Local 721, S.E.I.U., AFL-CIO, as to wages,
hours, and other terms and conditions of employment
covering employees in the unit herein found appropriate.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of
the Act:
(a) Upon request, recognize and bargain collectively
with Licensed Practical Nurses and Technicians of New
York, Inc., Local 721, S.E.I.U., AFL-CIO, as the exclu-
sive representative of the employees in the appropriate
" In the event no exceptions are filed as provided b) Sec 10246 of
the Rules and Regulations of the National ahbor Relations Board, the
findings, conclusions, and recommended Order herein shall, as pror ided
in Sec 102.48 of the Rules and Regulations. be adopted hb the Board and
become its findings, conclusions. and Order, and all objections thereto
shall he deemed waived fir all purposes
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit found herein and, if an agreement is reached,
embody in a written and signed memorandum the agree-
ment so reached.
(b) Post at its premises in Watertown, New York,
copies of the attached notice marked "Appendix A."12
Copies of said notice, on forms provided by the Regional
Director for Region 3, after being duly signed by a rep-
resentative of Respondent, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that unless, within the
aforesaid 20-day period, Respondent notifies the Region-
al Director, in writing, that it will comply with the
Order recommended herein, the National Labor Rela-
tions Board will issue an Order requiring Respondent to
take the action recommended.
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX A
NOTICES To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Licensed Practical Nurses and
Technicians of New York, Inc., Local 721, S.E.I.U.,
AFL-CIO, as to wages, hours, and other terms and
conditions of employment, covering employees in
an appropriate bargaining unit.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the Act.
WE WILL, upon request, recognize and bargain
collectively with Licensed Practical Nurses and
Technicians of New York, Inc., Local 721, S.E.I.U.,
AFL-CIO, as the exclusive representative of the
employees in an appropriate bargaining unit and, if
an agreement is reached, embody it in a written and
signed memorandum. The appropriate unit is:
All full-time and regular part-time licensed prac-
tical nurses, including graduate licensed practical
nurses permitted to practice as licensed practical
nurses (excluding supervisors, technical employ-
ees, clerical employees, service and maintenance
employees, RNs, and all others), employed by
The House of the Good Samaritan and The Sa-
maritan-Keep Nursing Home, Inc., 830 Washing-
ton Avenue and 133 Pratt Street, Watertown,
New York.
THE HOUSE OF THE GOOD SAMARITAN
AND THE SAMARITAN-KEEP NURSING
HOME, INC.