La Grange Land Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1971

188 N.L.R.B. 861 (N.L.R.B. 1971)

COLONIAL MANOR CONVALESCENT CTR. 861
Colonial Manor Convalescent & Nursing Center, a
Division of the La Grange Land Corporation and
Council # 19, American Federation of State, County
and Municipal Employees, AFL-CIO. Case 13-CA-
9707
March 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 27, 1970, Trial Examiner Bernard J. Seff
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom, and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. Thereafter the Respondent filed exceptions
to the Trial Examiner's Decision 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 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 preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case,
including the Respondent's exceptions and brief, and
hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner, only to the ex-
tent consistent herewith.
The Trial Examiner found that Respondent violat-
ed Section 8(a)(5) of the Act when it refused to bar-
gain with the Union claiming that it had a good-faith
doubt as to the Union's majority status among
Respondent's employees. In reaching this conclusion
the Trial Examiner found that Respondent was ques-
tioning the Union's majority status at a time when it
had been found to have been in violation of Section
8(a)(3) of the Act. The Trial Examiner, citing Viking
Lithographers, Inc., 184 NLRB No. 16, noted an
employer's right to question the union's majority sta-
tus after the expiration of the certification year pro-
vided its asserted doubt "is raised in a context free of
unfair labor practices ...." We do not agree with his
conclusion and find merit in Respondent's excep-
tions, particularly in view of the record facts in this
case.
The Trial Examiner in effect gave a literal reading
to our language in Viking, interpreting that case
(which did not involve any unfair labor practices) to
impose an absolute proscription against questioning a
union's majority status in the context of any unfair
labor practices. While the literal language of Viking is
subject to such an interpretation, we did not intend
and do not adopt this view. Rather, we believe that the
Board's policies in this area have been fully set forth
and defined in other cases . In Celanese Corporation of
America, 95 NLRB 664, 673, the Board delineated the
basic principles under which an employer could ques-
tion the union's majority status . In that case we said:
And, secondly, the majority issue must not have
been raised by the employer in a context of illegal
antiunion activities, or other conduct by the em-
ployer aimed at causing disaffection from the
union or indicating that in raising the majority
issue the employer was merely seeking to gain
time in which to undermine the union.
In the underlying unfair labor practice involved
herein, the record shows that employee Mason was
found not to have been considered for an opening in
a position which he had formerly held but which he
lost as a result of having been replaced during an
economic strike. The Trial Examiner in that case, cit-
ing The Laidlaw Corporation, 171 NLRB No. 175,
found that the failure to consider Mason, although it
occurred by oversight was violative of Section 8(a)(3)
of the Act as inherently destructive of Mason's rights
and the Board upheld this finding.' The Respondent
was not found to have engaged in any other unfair
labor practices. It is clear that the unfair labor prac-
tice involving Mason was not of such a character as
to either affect the Union's status, cause employee
disaffection, or improperly affect the bargaining rela-
tionship itself. Accordingly, we find on the particular
facts of this case that the Respondent was not pre-
cluded from questioning the Union's majority status.
As to the question of Respondent's good-faith
doubt of the Union's majority status and the
Respondent's factual basis for believing that the Un-
ion had lost its majority status since its certification,
the record shows that the last meeting between the
Union and Respondent was on October 23, 1969. A
bargaining session was then scheduled for November
4, 1969. The Union, without any notice to Respon-
dent, failed to attend. Following the aborted Novem-
ber 4 meeting, Respondent's employees filed a
decertification petition which was dismissed by the
Regional Director on December 12, 1969, because of
the pending unfair labor practice case. It was not until
March 10, 1970, more than 4 months after the Octo-
ber 23, 1969, meeting that the Union again communi-
cated with Respondent asking for another bargaining
session . Respondent refused this request, raising the
question of the Union's majority status. In our opin-
ion, the total absence of any activity by the Union and
its silence on behalf of the employees for more than
' Colonial Manor Convalescent & Nursing Home, 184 NLRB No. 80.
188 NLRB No. 129
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 months, coupled with the employees ' decertification
petition filed in late November 1969, establish that
Respondent had a reasonable basis for doubting that
the Union still represented a majority of the employ-
ees on March 10, 1970.2
In the light of all the foregoing circumstances, and
as we are persuaded that Respondent 's asserted doubt
was premised on a reasonable factual basis and was
advanced in good faith, we shall dismiss the com-
plaint.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as .amended, the Na-
tional Labor Relations Board hereby orders that the
complaint herein be , and it hereby is, dismissed.
2 In reaching this conclusion we must emphasize that we do not rely to any
significant extent on the fact standing alone that the employees filed a decer-
tification petition . Rather, we would 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 employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner: With all parties repre-
sented, this case was tried before me in Chicago, Illinois, on
June 17 and 18, 1970, on complaint of the General Counsel
of the National Labor Relations Board and answer of La
Grange Land Corporation,' herein called the Respondent
or the Company.2 The issues raised b th e pleadings are
whether Respondent violated Section 8(a)(5) of the Nation-
al Labor Relations Act, as amended, by certain conduct to
be detailed hereinafter. Briefs have been submitted by the
parties which have been duly considered.
Upon the entire record and my observation of the wit-
nesses, including their demeanor while testifying on the
stand, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE RESPONDENTS BUSINESS
Respondent is and has been at all times material herein
a corporation organized under the laws of the State of Illi-
nois. At all times material herein Respondent has main-
tained a place of business at 339 Ninth Avenue , La Grange,
Illinois, under the name of Colonial Manor Convalescent &
Nursing Center , a Division of the La Grange Land Corpora-
tion . At this location it is now , and at all times material
herein has been, engaged in the business of providing resi-
dential nursing , convalescent, and health care services and
related services.
During the past year, a representative period, Respon-
dent , in the course and conduct of its business operations,
realized gross revenues in excess of $800,000.
During the past year, a representative period , Respon-
dent, in the course and conduct of its business operations,
i The name of the Respondent was amended at the hearing.
2 The charge herein was filed by the Union on March 20, 1970, and a copy
thereof was served on Respondent on or about March 27, 1970, by registered
mail.
caused goods valued in excess of $50 ,000 to be shiIlli into
Illinois directly or indirect' from out of the State o f nois.
Respondent is now, and at all times material herein has
been, 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 at all times matenal herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology of Events
The events are summanzed:3
The Union was certified on July 10, 1968.
After 12 bargaining sessions which took place up to
April 9 , 1969 , no agreement was concluded.
Another session took place on April 14, 1969, but when
it did not result in a contract the employees went on
strike.
The strike which commenced in April ended on May
2, 1969.
On April 21 , 1969, the Union requested certain bar-
gaining information concerning the wages of the indi-
viduals in the bargaining unit.
When no information was forthcoming from the Re-
Ye ondent the Union filed a charge against the Respon-
dnt because of its refusal to provide the information.
This charge was settled on November 3, 1969. The
settlement included the withdrawal of the charge by the
Union in exchange for the Company's supplying it with
the information it had requested. The settlement was
informal.
The Union filed an 8(aX3) against Respondent alleging
that it had discriminated against the Union 's most vo-
cal adherent which resulted in the holding of a hearing
and the issuance of a Trial Examiner 's Decision on
January 30, 1970, which found the Company guilty of
unfair labor practices and ordered the reinstatement of
the individual in question. This case was affirmed by
the Board.
The employees filed a decertification petition which was
dismissed by the regional office on December 12, 1969, by
a letter which stated , inter alia:
From the investigation , the evidence shows that the
Union herein , did not at the time the petition was filed,
have the opportunity to enjoy a full year of bargaining
after its certification.
Pursuant to the above letter from the Regional Director
when he dismissed the petition for decertification the Union
wrote to the Company requesting a bargaining conference.
Respondent points out that the Com any notified the
Union that it would be available for an additional bargain-
ing conference on November 4, 1969 . Respondent appeared
at this conference at the time and place indicated in the
notification to the Union but no representative of the Union
put in an appearance . The Union neither telephoned to
request a change of appointment nor called to indicate the
reason for its not being present at this bargaining confer-
ence which it had requested.
On or about March 10, 1970, the Company responded to
the notice in the dismissal of the decertification petition by
stating that the Union was in effect defunct in that it had
neither been seen nor heard from by any of the employees
i Unless otherwise indicated, all dates fall in 1970.
COLONIAL MANOR CONVALESCENT CTR.
of the Respondent for many months , had failed to keep its
appointment, and for these reasons Respondent filed a peti-
tion for certification requesting that the Union prove its
majority status . As a consequence of this letter From the
Company the instant charge was filed.
There is no dispute between the parties with res pect to the
facts as set forth , supra, under the chronology of events.
The General Counsel takes the position that the settle-
ment of the request for information charge (the 8(a)(5)) and
the complaint involving Mason , the leader of the Union
within the home , constitute unfair labor practices . The com-
mission of unfair labor practices by Respondent has the
effect of extending the certification year from July 1969 to
July 1970 . It is argued that under these circumstances the
Union's majority status has been extended and cannot be
contested because of the extension of the certification year.
In the course of these negotiations both parties did reach
agreement concerning some matters but many of the pro-
posals in the Union 's suggested contract were not agreed
upon . It should be emphasized that no agreement was ever
reached on a complete contract . A work stoppage took
place on April 14 and was terminated by the direction of the
Union on May 2 . After the end of the work stoppage the
Union virtually dropped any and all contact with the mem-
bers of the bargaining unit for which they were certified in
July 1968 . Neither the Union nor any of its designated
representatives among the employees of Respondent have
attempted to represent the union employees in any manner.
Furthermore , the Respondent contends that at the present
time the employees are not even aware of the fact that there
is supposedly a majority representative which claims to rep-
resent them.
In the Terrell Machine Company case, 173 NLRB No. 230,
the law , as it pertains to the instant situation , is succinctly
set forth:
It is well settled that a certified union , upon expira-
tion of the first year following its certification, enjoys
a rebuttable presumption that its majority representa-
tive status continues . This presumption is designed to
promote stability in collective -bargaining relationships
without impairing the free choice of employees. Ac-
cordingly , once the presumption is shown to be opera-
tive , a prima facie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful . The prima facie case maybe rebut-
ted if the employer affirmatively establishes either: (1)
that at the time of the refusal the union in fact no longer
enjoyed majority representative 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 i.e., "good
faith doubt," two prerequisites for sustaining a defense
are that the asserted doubt must be based on objective
considerations and it must not have been advanced for
the purpose of gaining time in which to undermine the
union.
As an example of how the Board yardsticks operate with
relation to the Union's status following the expiration of the
certification year attention is called to the case of Viking
Lithographers, Inc., 184 NLRB No. 16: one of the key con-
siderations which apply in this type of situation is that there
must be a total absence of independent unfair labor prac-
tices by the employer and the employer 's assertion of a
good-faith doubt concerning the union 's continued majority
status must be based on objective considerations . In this
case in determininthat objective conditions did exist, the
Board notes such factors as the union 's total inactivity dur-
ing the 4-month period prior to the withdrawal of recogni-
863
tion, and the expression of dissatisfaction with the union by
several employees.
The Board requires , as a condition precedent to accepting
a company's contention that the union has ceased to oper-
ate in a given situation , that during the period of total
inactivity there must be no unfair labor practices committed
by the company.
Applying the above two cases to the facts of the instant
case it can be readily seen that the requisite absence of the
commission of any unfair labor practices does not ap ppI to
the facts in the current situation . The Union filed an S(,(1)
and (3) charge against the Company , a hearing was held,
and the Board held in that case that the present Respondent
had discriminatorily discharged one, mason.
It would also seem clear that during the period when the
Union was awaiting the receipt from the Company of cer-
tain information regarding the wage of the employees in the
appropriate bargaining unit it could not bargain intelligent-
ly without the receipt of this information . Whether or not
a charge had been filed and was thereafter withdrawn by a
settlement as a result of which the required information was
provided to the Union by Respondent , the fact remains that
during the period when this information was not made
available the passage of time in the 1 year 's certification
presumption did not run.
Under the above facts it would seem clear that the vitality
of the certification was extended and during the time that
this extension was in effect the Company has-been found by
the Board to have committed unfair labor practices.
In Viking Lithographers, Inc., 184 NLRB No. 16, 74
LRRM 1407, 1408 , the Board reiterated the law as it applies
to the instant matter:
The principle applicable in the present situation has
long been established . After the certification year has
run, an employer may lawfully withdraw recognition
from an incumbent union because of an asserted doubt
of the union 's continued majority if its assertion of
doubt is raised in a context free of unfair labor practices
and is supported by a showing of o bjective considera-
tions providing reasonable grounds for a belief that a
majority of the employees no longer desire union repre-
sentation . [Emphasis supplied.]
Also see Nu -Southern Dyeing & Finishin Inc.; Henderson
Combining Co., 179 NLRB No. 96 , 72 LRRM 1410; Terrell
Machine Company, 173 NLRB No. 230 ; Haymarket Book-
binders, Inc., 183 NLRB No. 15.
The sina qua non of Respondent's coming within the lan-
guage of the above-cited cases is that employers must not
have committed any unfair labor practices during the peri-
od within which the obligation tobargain subsisted. In the
case at bar Respondent has been found to have discrimina-
torily discharged Mason and thus it violated Section 8(aX3)
and (1) of the Act. I therefore find that by refusing to
bargain with the Union on March 10, 1970 , Respondent
violated Section 8(aX5) of the Act.
The General Counsel argued both orally and in his brief
that as an appropriate remedy I should order Respondent
to make the employees whole by paying them back wages
at the rate they would have been compensated from and
after the period when the Company had offered them in-
creases as set forth in one of its proposals made to the Union
in the course of bargaining . It should be especially noted
and the Union admitted that the parties never reached
agreement on a total contract . It is so well established as to
make citation to the authorities unnecessary that the Board
has no authority to write a contract for the parties. In addi-
tion such an extraordinary remedy is usually not granted
unless the employer has been found to have committed
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
flagrant unfair labor practices . The facts of record do not
remotely show Respondent to have been guilty of the com-
mission of egregious unfair labor practices . Therefore the
remedy requested by the General Counsel is hereby denied.
IV. THE EPFECr OF THE UNFAIR LABOR PRACTICES UPON COMMt4RCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close , intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that Respondent has engaged and is engag-
ing in unfair labor practices , it will be recommended that it
cease and desist therefrom and take certain affirmative ac-
tion, including the posting of an appropriate notice , to effec-
tuate the policies of the Act.
Having found that the Union is the designated represent-
ative of Respondent 's employees in an appropriate unit and
that Respondent has engaged in an unfair labor practice by
refusind g to bargain collectively with it, it will be recom-
mende that Respondent cease and desist from refusing so
to bargain ; that it shall , upon request, so bargain and, if an
agreement is reached, embody such agreement in a signed
contract.
Upon the basis of the above findings of fact and upon the
entire record in the case , I reach the following:
CONCLUSIONS OF LAW
1. Colonial Manor Convalescent & Nursing Center, a
-Division of the La Grange Land Corporation, is an em lo
er en aged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Council # 19, American Federation of State, County
and Municipal Employees , AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The employees ofRespondent in the following de-
scribed unit constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time employees working
more than 20 hours per week , except office clerical
employees, registered nurses, licensed practical nurses,
guards, supervisors , chefs, managers, and administra-
tors.
4. At all times since March 10, 1970, Council # 19, Amer-
ican Federation of State, County and Municipal Employ-
ees, AFL-CIO, has been the exclusive representative of the
employees in the aforesaid unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment.
5. By refusing on March 10, 1970, and thereafter, to bar-
gain collectively with the above-named labor organization,
Respondent has engaged and is engaging in an unfair labor
practice within the meaning of Section 8(aX5) of the Act.
6. By the commission of the aforesaid unfair labor prac-
tices, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
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 Order omitted from publication.]