Mountain Valley Care & Rehabilitation Center

National Labor Relations Board - Board Decisions

Jan 23, 2006

346 N.L.R.B. 281 (N.L.R.B. 2006)

MOUNTAIN VALLEY CARE & REHABILITATION CENTER
346 NLRB No. 28
281
Kindred Healthcare, Inc. d/b/a/ Mountain Valley
Care and Rehabilitation Center and United
Steelworkers of America, AFL–CIO, CLC. Case
19–CA–29390
January 23, 2006
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
DECISION AND ORDER
On March 23, 2005, Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified and set
forth in full below.1
The judge found that the Respondent violated Section
8(a)(5) of the Act by withdrawing recognition from the
certified union, by repudiating the collective-bargaining
agreement and refusing to bargain for a successor agree-
ment, and by unlawfully failing to remit union dues pur-
suant to valid dues-checkoff authorizations. For the rea-
sons discussed below, we agree with the judge.
Facts
The essentially uncontested facts in this case are more
fully detailed in the judge’s decision. The longstanding
history of collective bargaining for this unit of employees
began in 1979, when the Charging Party, the United
Steelworkers of America, AFL–CIO, CLC, was certified
as the collective-bargaining representative. Ownership
of the healthcare facility where the unit employees are
employed has changed a few times since the original
certification.
The Respondent took over the facility sometime be-
tween February 2001 and 2002 and assumed the existing
collective-bargaining agreement covering unit employ-
ees.2 In 2002, the parties entered into a successor agree-
ment, effective through February 2005. The predecessor
contract identified the union as “United Steelworkers of
America on behalf of its Local 9052.” The successor

1 We shall substitute the Board’s standard language for certain por-
tions of the judge’s recommended Order. We also shall substitute a
new notice in accordance with our decision in Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
2 The exact date that the Respondent took over the facility is not
identified.
contract identified the union as “United Steelworkers of
America on behalf of its Local 5089-04.”
Under the International Union’s constitution, the Inter-
national is the contracting party on all contracts. The
constitution requires that all dues be remitted to the In-
ternational Union. The constitution further states that no
individual or entity has the authority “to represent, act
for, commit, or bind the International Union in any mat-
ters” unless it has obtained written express authority
from the International Union.
The constitution empowers the International Union to
create local unions and to transfer jurisdiction for bar-
gaining units among these local unions. When the Inter-
national Union is certified as a bargaining representative
it assigns the bargaining unit members to one of two
types of local unions: either a newly chartered local es-
tablished for the specific bargaining unit or an amalga-
mated local in which the bargaining unit is given a des-
ignated unit number. Bargaining units commonly are
referenced by their local and, where applicable, individ-
ual unit number.
The International Union commonly delegates certain
representative functions for the bargaining units it repre-
sents to the assigned local union.3 In this case, the local
union does not have staff, so International Union staff
representatives primarily handled contract negotiations
and higher step contract grievances. International offi-
cers and staff also signed all bargaining unit contracts.
Correspondence exchanged with the Respondent regard-
ing the bargaining unit occurred through International
Union representatives.
The events giving rise to the unfair labor practices here
began in April 2004.4 For reasons explained in the
judge’s decision, the International Union on April 1 sent
a letter to the Respondent advising simply that “the
members of USWA Local Union 5089 Unit 04 have be-
come members of USWA Local Union 5114 Unit 06.”
The letter directed the Respondent to continue forward-
ing monthly dues checks, payable to the International, to
the International Union offices, and requested the Re-
spondent to send a duplicate copy of the “Summary of
Union Dues” form to the financial secretary of Local
Union 5114.
The Respondent replied by letter dated July 8, ad-
dressed to the International Union. Asserting that the
International Union’s April 1 letter constituted notice
that “Local 5089 Unit 04, which represented various em-
ployees at our Mountain Valley Care and Rehabilitation
Center in Kellogg, Idaho, was transferring its representa-

3 The International Union sends a portion of the dues it receives to
the applicable local for this purpose.
4 All dates hereafter refer to 2004, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD282
tional authority to USWA Local 5114 Unit 06,” the Re-
spondent stated that it was “prohibited by federal law
from recognizing Local 5114 and therefore decline to do
so.” The Respondent additionally advised that “we ac-
cept Local 5089’s disclaimer of interest in continuing to
represent our Mountain Valley employees.”
The very next day, the Respondent sent an internal
memo to all unit employees reiterating the above and
further announcing that the unit employees “are no
longer represented by any union”; that the union contract
“no longer applies to your employment”; and that the
Respondent intended to stop deducting union dues and
“will refund any dues that we withheld and did not send
to the union.”
Since then, the Respondent has continued to refuse all
requests to recognize the International Union, to bargain
with it regarding a successor agreement, and to withhold
or remit union dues.
Discussion
As the judge found, the only issue here is whether the
certified International Union gave up its right to repre-
sent the bargaining unit. The judge concluded that the
International remained the bargaining representative.
The record amply supports this conclusion. The Inter-
national Union’s governing constitution mandates that it
serve as the bargaining representative for all units, and
that was the case here. Throughout the history of the
bargaining unit, the International Union remained in-
volved in the representation process; it was an active
participant in contract negotiations; and its officers and
representatives signed all contracts.
The Respondent concedes these facts, but argues that
at some time before it took over the facility, the Interna-
tional Union ceded its authority as bargaining representa-
tive to its local union.5 Thereafter, the Respondent ar-
gues, the International Union was simply a servicing
agent for the locals.6 The Respondent bases this conten-
tion on certain language in the various collective-
bargaining agreements and other documents, conduct of

5 The Respondent concedes that if the International Union remains
the bargaining agent, the change in the local union designation was
permissible. Given that we find that the International Union remains
the bargaining agent, it is unnecessary for the Board to pass on whether
changes in the identity of the local raised issues under Board precedent
concerning union mergers and transfers of affiliation. See, e.g., Tawas
Industries, 336 NLRB 318 (2001).
6 International Union representatives, the only two witnesses in the
case, testified without contradiction that the International Union never
transferred representation or disclaimed interest in the unit. The Re-
spondent dismisses this testimony as irrelevant because, in its view, any
transfer likely occurred before these representatives took on any re-
sponsibilities for the unit. Since we find that the Respondent failed to
meet its burden to establish a transfer it is not necessary to address this
issue.
the unions’ agents, and correspondence exchanged dur-
ing the course of the 25-year bargaining history. We find
no merit to this contention.
The Board consistently has held, with court approval,
that the “party seeking to avoid an otherwise binding
bargaining obligation by asserting the change in the bar-
gaining representative . . . bears the burden of demon-
strating that change.” Minn-Dak Farmers Cooperative,
311 NLRB 942, 945 (1993), enfd. 32 F.3d 390 (8th Cir.
1994), quoting H. B. Design & Mfg., 299 NLRB 73, 73–
74 (1990). Accord: Sullivan Bros. Printers, 317 NLRB
561, 562 (1995), affd. 99 F.3d 1217 (1st Cir. 1996); CPS
Chemical Co., 324 NLRB 1018, 1018 fn. 7 (1997), enfd.
160 F.3d 150 (3d Cir. 1998). This effectuates “industrial
stability sought by the Act [that] would unnecessarily be
disrupted if every union organizational adjustment were
to result in displacement of the employer-bargaining rep-
resentative relationship.” NLRB v. Financial Institution
Employees Local 1182 (Seattle-First National Bank),
475 U.S. 192, 202–203 (1986), quoting Canton Sign Co.,
174 NLRB 906, 909 (1969), enf. denied on other grounds
457 F.2d 832 (6th Cir. 1972). Further, where, as here,
the asserted change in the bargaining representative has
resulted from an asserted disclaimer of interest in repre-
senting employees, the party asserting the disclaimer has
the burden of showing that it was “clear and unequivo-
cal”. Nevada Security Innovations, Ltd., 341 NLRB 953
(2004); VFL Technology Corp., 332 NLRB 1443 (2000).
The Respondent failed to carry its evidentiary burden.
It relies on circumstantial evidence that is, at best, am-
biguous and open to contrary interpretation. For exam-
ple, the Respondent argues that by signing contracts with
the designation “on behalf of” the local union and by
referring to the union in various correspondences as
“United Steelworkers of America, Local ___” the Inter-
national Union acknowledged that it was no longer the
bargaining representative. As the judge observed, how-
ever, local union numbers (or subunit numbers in the
case of amalgamated locals) are specific to designated
bargaining units and it was common practice to refer to
the bargaining unit by shorthand reference to the appli-
cable local union number. We recognize that the lan-
guage “United Steelworkers of America on behalf of its
Local 5089-04” suggests that the local is the representa-
tive and that the International acts on its behalf. How-
ever, we think that this inadvertent use of technical lan-
guage does not rebut the clear historical fact that the In-
ternational was and is the certified representative. Cf.
Vermont Marble Co., 301 NLRB 103, 103 fn. 1 (1991)
(although language of International’s constitution “would
be consistent with [a] finding that the International and
the local unions were joint representatives of the Re-
MOUNTAIN VALLEY CARE & REHABILITATION CENTER 283
spondents’ employees, it is equally consistent with the
judge’s finding that the locals here function, in effect, as
the International’s agents and not as representatives in
their own right”).
The Respondent also cannot justify its conduct by
claiming that it was uncertain or unaware that the Inter-
national Union was the real bargaining representative. In
the 3 years since it took over the facility, the Respondent
communicated regularly with the International Union
regarding the unit. The collective-bargaining agreement
that the Respondent entered into was negotiated with and
signed by International Union representatives. Any un-
certainty the Respondent may have had either before or
after it received the International Union’s April 1 letter
stating that unit employees had become “members of
USWA Local Union 5114 Unit 06” could have been re-
solved simply by asking the International Union about its
intentions or by filing an RM petition. That the Respon-
dent not only failed to make any such inquiries but also
immediately followed up on its July 8 withdrawal of rec-
ognition by sending a memorandum to unit employees
unilaterally proclaiming that they were no longer repre-
sented “by any union,” suggests that it was not interested
in the facts but only looking to avail itself of a perceived
opportunity to be rid of the union.7
Accordingly, we affirm the judge’s conclusion that the
International Union remained the bargaining representa-
tive and that the Respondent unlawfully withdrew recog-
nition, repudiated the contract, failed to withhold or to
remit union dues, and refused to negotiate and bargain
with the International Union for a successor contract.8
ORDER
The National Labor Relations Board orders that the
Respondent, Kindred Healthcare, Inc. d/b/a/ Mountain
Valley Care and Rehabilitation Center, Kellogg, Idaho,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition and thereafter failing and
refusing to recognize the United Steelworkers of Amer-
ica, AFL–CIO, CLC (the International) as the exclusive
bargaining representative of employees in the bargaining
unit.

7 In withdrawing recognition, the Respondent has never claimed that
the International Union has lost majority support or that it had any
uncertainty in this regard. Rather, as indicated earlier, the only ques-
tion was whether the International voluntarily ceded its representative
status. The issue raised in Levitz Furniture Co., 333 NLRB 717 (2001),
accordingly is not present here.
8 Given our conclusion, we find it unnecessary to rely on the judge’s
statements concerning what may have been the ordinary practice in
other bargaining units or the ability of the union representatives to
understand the legal implications of their conduct.
(b) Repudiating the 2002–2005 collective-bargaining
agreement and thereafter refusing to meet and bargain
with the International regarding a successor agreement.
(c) Unlawfully failing to withhold and to remit to the
International dues withheld from employees’ pay pursu-
ant to valid dues-checkoff authorizations.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the International as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All employees of the Mountain Valley Care and Reha-
bilitation Center, excluding all guards and supervisors
as defined in the National Labor Relations Act, as
amended, and all Registered Nurses, Licensed Regis-
tered Nurses, the Activity Director, Business Office
Clericals, the Administrator, the Director of Nursing
and Dietary Supervisor, as defined by the National La-
bor Relations Act.
(b) Make the International whole for any loss of dues
suffered as a result of the failure to comply with the dues
provision of the collective-bargaining agreement, plus
interest,9 as provided in the remedy section of the judge’s
decision.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its Kellogg, Idaho facility copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained

9 Interest shall be computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
10 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD284
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since July 7, 2004.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize or bargain with the
United Steelworkers of America, AFL–CIO, CLC as the
exclusive representative of the employees in the bargain-
ing unit.
WE WILL NOT repudiate the 2002–2005 collective-
bargaining agreement and will not refuse to meet and
bargain with the International regarding a successor
agreement.
WE WILL NOT unlawfully fail to remit to the United
Steelworkers of America, AFL–CIO, CLC dues that we
withheld or should have withheld from employees’ pay
pursuant to dues-checkoff authorizations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All employees of the Mountain Valley Care and Reha-
bilitation Center, excluding all guards and supervisors
as defined in the National Labor Relations Act, as
amended, and all Registered Nurses, Licensed Regis-
tered Nurses, the Activity Director, Business Office
Clericals, the Administrator, the Director of Nursing
and Dietary Supervisor, as defined by the National La-
bor Relations Act.
WE WILL make whole the United Steelworkers of
America, AFL–CIO, CLC for any loss of dues suffered
as a result of our failure to comply with the dues provi-
sions of the collective-bargaining agreement, plus inter-
est.
KINDRED HEALTHCARE, INC. D/B/A/ MOUNTAIN
VALLEY CARE AND REHABILITATION CENTER
Jo Anne P. Howlett, Esq., for the General Counsel.
Henry F. Telfeian, Esq., Labor Relations Counsel, Kindred
Healthcare, Inc., of San Francisco, California, for the Re-
spondent.
Steven Powers, Staff Representative, District 11, United Steel-
workers of America, AFL-CIO, CLC, of Spokane, Washing-
ton, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I heard
the above-captioned case in trial in Spokane, Washington, on
March 15, 2005, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 19 of the National
Labor Relations Board (the Board) on January 20, 2005, and
amended on March 1, 2005, based on a charge filed by the
United Steelworkers of America (the Charging Party or the
Union or the International) against Kindred Healthcare, Inc.
d/b/a Mountain Valley Care and Rehabilitation Center (the
Respondent) on August 30, 2004, and docketed as Case 19–
CA–29390. The Respondent filed a timely answer and
amended answer to the complaint.
The amended complaint alleges that the Respondent had at
all times material recognized the Union as the representative of
certain of its employees at its Kellogg, Idaho facility, and en-
tered into and honored a collective-bargaining agreement with
the Union covering those employees which was effective by its
terms from March 1, 2002, through February 1, 2005. The
complaint further alleges that on or about July 8, 2004, the
Respondent withdrew its recognition of the Union as the exclu-
sive representative of its employees and, on or about July 8,
2004, repudiated the contract by abolishing the grievance pro-
cedure, ceasing to collect dues from the unit employees and
ceasing to remit dues collecting from unit employees retroac-
tive to April 1, 2004, thereby violating Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act).
MOUNTAIN VALLEY CARE & REHABILITATION CENTER 285
The amended answer, as further amended at the hearing, de-
nies that the Union was the representative of its employees or
that the Respondent and the Union entered into a collective-
bargaining agreement covering unit employees. Rather, the
Respondent affirmatively asserts, its employees were repre-
sented by and it has a collective-bargaining agreement with an
entity that disclaimed interest in employees in early July 2004,
which disclaimer of interest was accepted by the Respondent on
or about July 8, 2004. The amended answer denies that this
conduct or its refusal to recognize any other entity as the repre-
sentative of its employees violated the Act.
FINDINGS OF FACT1
Upon the entire record herein, including helpful trial briefs
and oral argument from the Respondent and the General Coun-
sel, I make the following
I. JURISDICTION
The Respondent is a State of Delaware corporation, with an
office and place of business in Kellogg, Idaho, where it is en-
gaged in the business of operating an assisted living facility and
rehabilitation center (the facility). The Respondent during the
12 months preceding the issuance of the complaint, a represen-
tative period, in the course and conduct of its business opera-
tions, had gross sales of goods and services valued in excess of
$250,000 and purchased and caused to be transferred and deliv-
ered to its facilities within the State of Idaho, goods and materi-
als valued in excess of $5000 directly from sources outside the
State.
Based on the above, there is no dispute and I find the Re-
spondent is and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
The record establishes, there is no dispute, and I find the Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
1. The Respondent
The Respondent is a national healthcare services company
operating healthcare facilities across the United States includ-
ing an assisted living center in Kellogg, Idaho, the only facility
at issue herein (the facility). The identity of and actions by

1 The parties waived the filing of posthearing briefs and argued the
case orally. As a result of the pleadings and the stipulations of counsel
at the trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings herein are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
The parties at trial requested a bench decision. I ruled that the sub-
stantial amount of documentary evidence rendered such a decision
inappropriate.
2 Much of the background recited herein is based on archival docu-
ments from the business records of the Union. The sole testimony at
the hearing was from the present and former staff representatives of
District 11 of the Charging Party, Messrs. Powers and Melton.
specific agents of the Respondent at the facility are not at issue.
The Respondent’s labor counsel was at relevant times, Henry F.
Telfeian, an experienced labor lawyer.
2. The Union
The Union is an International labor organization that repre-
sents employees in various occupations across the country and
in Canada. Consistent with its international constitution at all
relevant times, it is organized into a national office, and subor-
dinate district offices and local unions. Currently there are 12
district offices. District 11, the district office involved herein,
includes the States of Alaska, Washington, Oregon, Idaho,
Montana, Wyoming, North Dakota, and South Dakota. The
facility involved herein, located in Kellogg, Idaho, is within
District 11.3 The current International staff representative in
District 11 assigned to the unit herein is Steven Powers. His
predecessor in the same position was Lavern Melton.
By the express terms of its International constitution, repre-
sentational rights reside exclusively with the International and
not with districts or locals. The constitution expressly states
that the International is the contracting party in all collective-
bargaining agreements and limits the authority of its agents at
the district and local levels to deviate from International control
and approval of representational matters.
The International under its constitution establishes local un-
ions and reserves the right at the International level to create,
dissolve and transfer locals or parts of particular locals’ juris-
diction to other locals. Thus, the represented members of par-
ticular bargaining units may have their local and district affilia-
tions transferred by the International as it deems appropriate.
Organizational control over districts and locals reside exclu-
sively with the International. locals are explicitly prohibited
from acting contrary to the International’s determinations or
without its approval. Thus, for example, no Local may be dis-
solved except with the approval of the International.
Apparently, based on the unchallenged testimony of Powers
and Melton, two types of locals exist. Stand alone locals are
comprised exclusively of union members who are employed in
a single, represented bargaining unit. Such locals at least cur-
rently bear a simple four-digit number, for example, Local
9052. The other type of local is a multiunit or amalgamated
local comprised of union members employed in more than one
bargaining unit. The amalgamated locals undertake certain
administrative tasks as a multiunit body, but the separate unit-
member compliments preserve separate organizational structure
with the local. Thus, for example, as will be discussed infra, at
one time the unit members of the facility herein were members
of Local 5089, but more specifically were members of Local
5089(4) also referred to as Local 5089-4, the “04” designation
identifying the bargaining unit involved. The individual sub-
designated units, such as Local 5089-04, are themselves re-
ferred to as locals in their own right.
The membership of a local, either the standing alone locals
covering one unit or the one unit suborganizational unit “0X”
designated organization, within amalgamated Locals, is limited

3 Early on, in the 1970s, 1980s, and into the early 1990s, the facility
was located within District 36, which through reorganization became in
relevant part, District 11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD286
to union members employed in a particular represented bar-
gaining unit associated with that local. Conversely, a union
member working in a represented bargaining unit may only be
a member of the local assigned by International to that bargain-
ing unit.
Under the International’s constitution, the International cre-
ates bargaining agencies at and delegates certain representative
functions to the assigned district and local, to assist the Interna-
tional in representing each bargaining unit. The districts, at
least District 11 in the instant case, provide assistance and ex-
pertise as well as resources. The International constitution
asserts at article XVII, section 3:
The International Union and the Local Union to which the
member belongs shall have the right to exclusivity in present-
ing, maintaining, negotiating, adjusting and settling any griev-
ance or other matter relating to a member’s wages, hours and
conditions of employment.
The constitution expressly limits such devolved authority
however. Thus, for example, section 5 or article XVII states:
No Local Union or other subordinate body, and no officer,
agent, representative, or other member thereof shall have the
power or authority to represent, act for, commit, or bind the
International Union in any matter except upon express author-
ity having been granted thereof by the Constitution of in writ-
ing by the International President of the Internal Executive
Board.
As will be discussed in part infra, since World War II, mem-
bership in the Union’s represented units has declined and the
number of represented units has also declined forcing various
reorganizations consolidating districts and requiring dissolution
and consolidation of local unions. The community of Kellogg,
Idaho, had, for many years, area mines which employed sub-
stantial numbers of employees in units represented by the un-
ion. Those mines fell on hard times and closures occurred,
forcing changes in the locals in the area. Thus, in February
2001 the Sunshine Mine closed and subsequently shut down.
The great bulk of Local 5089 members who were in a Sunshine
Mine bargaining unit lost employment and, with the passage of
time, lost the right to remain members of the local or hold lead-
ership positions.
Relevant to the matters in controversy herein, the Interna-
tional created Local 9052, a stand alone local, soon after the
initial 1979 certification of representative. Consistent with the
International constitution, the Local was created for and limited
to the member employees employed in that bargaining unit.
In February 2000, the International dissolved or canceled
stand alone Local 9052 and transferred or merged the unit em-
ployed union members into amalgamated Local 5089 with
their own unit specific designation, Local 5089-04. The then
employer was notified of this fact by letter of March 6, 2000,
from Leo. W. Gerard, the International secretary-treasurer,
which stated, in part: “This is to inform you that the members
of USWA Local Union 9052 have become members of USWA
Local Union 5089-04.” There is no evidence that that em-
ployer’s agents took any action in response other than note the
new designation and new addresses involved.
With the subsequent diminution in Local 5089 membership,
Steve Powers, District 11 staff representative, by letter of
March 11, 2004, recommended to the International that Local
Union 5089 and its three represented units be merged into Lo-
cal 5114 and asserted that the “memberships from 5089-04 and
5114 have agreed to the merger.” Accepting the recommenda-
tion, the International transferred Local 5089-04 members into
Local 5114 as unit 06, thus, Local 5114-06. The International
secretary-treasurer notified the Respondent by letter, dated
April 1, 2004, which stated in part: “This is to inform you that
the members of USWA Local Union 5089 Unit 04 have be-
come members of USWA Local Union 5114 Unit 06.” There is
no evidence, beyond the written correspondence between the
parties in evidence and discussed below, that any exchanges of
any kind occurred between agents of any of the parties, includ-
ing the various locals involved, until after the Respondent
withdrew recognition of the unit in July.
As noted elsewhere in this decision, the record of events is
essentially a paper record. The District 11 agents provided
background evidence rather than detailed testimony respecting
the earlier events. There is no evidence or contention that there
was unit member dissent or rump, surviving or dissident local
unit members associated with canceled locals resisting the re-
organizations involved herein. There is no evidence or conten-
tion that there were dissident members making representational
demands on the bargaining units’ employers, including the
Respondent regarding the events. The finally the local transfers
described were consistent with the essentially plenary power of
the International regarding such matters.
The record also does not contain, and the Government and
the Charging Party do not contend, that the local reorganiza-
tions were conducted in a manner which, under Board law,
would establish representational continuity sufficient to hold
that if on local were the exclusive representative of unit em-
ployees, the representational rights were properly transferred to
other locals in the transfers described above.
3. The bargaining unit involved
From the time of the original 1979 certification to the pre-
sent, the unit description of the bargaining unit involved herein,
with the exception over time of changes in the facility’s name,
has remained the same. Thus, the collective-bargaining unit of
represented employees the Respondent has recognized as ap-
propriate is the same unit recognized by its predecessor em-
ployers (the unit and unit employees):
All employees of the Mountain Valley Care and Rehabilita-
tion Center, excluding all guards and supervisors as defined in
the National Labor Relations Act, as amended, Registered
Nurses, Confidential Employees, Business Office Clericals,
Administrator, the Director of Nursing, and the Dietary Su-
pervisor.
No dispute of any kind was evidenced respecting the unit de-
scription, the sentiments of unit members or of actions taken by
unit members at any time.
B. Events
Even though a presentation of events respecting the unit in-
volves some duplication from the discussion above, a chrono-
MOUNTAIN VALLEY CARE & REHABILITATION CENTER 287
logical recitation is helpful to understanding the issue in dis-
pute.
1. Initial bargaining with Hillhaven Corporation d/b/a
The Shoshone Living Center
Resolution of the disputes in the instant case requires consid-
eration of a bargaining history at the facility and bargaining
unit in question going back to a Board certification of represen-
tative on February 28, 1979. On that date, the Regional Direc-
tor for Region 19 of the National Labor Relations Board, fol-
lowing an election conducted in Case 19–RC–9520, certified
the Union as the exclusive representative of employees in the
following unit (the unit):
All employees of the Shoshone Living Center, excluding all
guards and supervisors as defined in the National Labor Rela-
tions Act, as amended, Registered Nurses, Confidential Em-
ployees, Business Office Clericals, Administrator, the Direc-
tor of Nursing, and the Dietary Supervisor.
The facility involved, located at 601 West Cameron, Kellogg,
Idaho, was at this time known as the Shoshone Living Center,
but experienced name and ownership changes over time. The
facility and the bargaining unit described above, are the sole
facility and the sole bargaining unit involved herein.
Archival documentation of the early contracts covering the
unit is not necessarily complete. The first contract, placed into
evidence is General Counsel’s Exhibit 2, a collective-
bargaining agreement and attached “Letter of Understanding”
which by their terms were entered into on March 1, 1983, and
expired on March 1, 1986. The agreement recites that it is
between the “United Steelworkers of America on behalf of its
Local No. 9052” and the then employer, Shoshone Living Cen-
ter. The two columns of lines for signatures on the contract
signature page are labeled the Hillhaven Corporation d/b/a
Shoshone Living Center and United Steelworkers of America
Local 9052. The signatures in the column labeled United
Steelworkers of America Local 9052 include International offi-
cers as well as subordinate organization agents among its nine
signatures. The attached letter of understanding dealing with
certain employees has a signature line for “USWA Staff Repre-
sentative.”
A second collective-bargaining agreement, identical in form
and relevant content and involving the same parties, is in evi-
dence as General Counsel Exhibit 3. It is effective by its terms
from March 1, 1986, through March 1, 1989. The copy in evi-
dence does not bear signatures. Similarly a third and a fourth
agreement, General Counsel’s Exhibits 4 and 5, extend from
March 1989 through February 29, 1992, and March 1, 1992,
through February 28, 1995. The third is signed by, among oth-
ers, Powers. The fourth bears a different identification of the
labor organization signatories as: “United Steel Workers of
America On Behalf of its Local 9052.” Again the labor organi-
zation signatories include International officers.
2. Bargaining with Hillhaven Corporation d/b/a Mountain
Valley Care & Rehabilitation Center
The fifth collective-bargaining agreement, in evidence as
General Counsel’s Exhibit 6, while identical in language to the
earlier described contracts regarding the name of the Union and
the unit description, refers to the 601 West Cameron, Kellogg
facility for the first time as the Mountain Valley Care and Re-
habilitation Center and the signature page identifies the em-
ployer as the Hillhaven Corporation d/b/a Mountain Valley
Care and Rehabilitation Center. The labor organization signa-
ture line was identical to the contract immediately preceding.
International officers are among the signatories including the
president and vice presidents as well as District 11 agents in-
cluding the District 11 director. The contract was in effect by
its terms from April 11, 1995, through February 28, 1998.
3. Bargaining with Vencor4 d/b/a Mountain Valley Care
and Rehabilitation Center
Vencor apparently took over the facility in or about late
spring 1997. It assumed the existing contract and in due course
entered into negotiations for a replacement to the April 11,
1995, through February 28, 1998 contract. Lavern Melton of
District 11 was involved in those negotiations. The contract
reached was extended by its terms from March 1, 1998, through
February 28, 2001. That agreement identified the contracting
union as the “United Steelworkers of America on behalf of its
Local 9052” and the recognition clause recognized that entity
as the exclusive representative of unit employees. The copy in
evidence is unsigned, however, the union signature lines are
labeled identically as the United Steelworkers of America on
behalf of its Local 9052.
In early 2000, Vencor was notified of the cancellation of Lo-
cal 9052 and the creation of Local 5089-04 as described in
greater detail supra. There is no evidence respecting this proc-
ess save the documents involved. The contract by its terms was
extended for an additional year, to February 28, 2002, when no
party sought bargaining.
4. Bargaining with the Respondent
The Respondent apparently took over the facility during the
extended year of the Vencor March 1, 1998 contract, i.e., dur-
ing the period February 2001 through February 2002. There is
no evidence respecting the specifics of the initial recognition by
the Respondent of the labor organization that represented its
unit employees, but there is no dispute that recognition was
afforded and, following an interim extension of the Vencor
contract, a replacement contract was negotiated.
That contract, in evidence as General Counsel’s Exhibit 9,
extends by its terms from March 1, 2002, through February 28,
2005. The contract identifies the contracting and representing
labor organization as the “United Steel Workers of America On
behalf of its Local 5089-04.” The signatory page identification
of the labor organization and the recognition clause of the con-
tract have the same reference. The eight individuals signing on
behalf of the labor organization under the date of October 2,
2002, include the following signatories identified under their
signatures on the document as holding the offices indicated:
the International president, the International secretary-treasurer,

4 The employer is identified in the initial records as First Healthcare
Corporation d/b/a Mountain Valley Care & Rehabilitation, but was also
part of the Vencor healthcare network. The 1998 contract designates
the employer’s title as Vencor Nursing Centers West d/b/a Mountain
Valley Care and Rehabilitation Center.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD288
the International vice presidents of administration and human
affairs, the District 11 director, the District 11 staff representa-
tive, Steve Powers, and two negotiating committee members.
5. Events subsequent to the entrance into the March 1,
2002 contract
The record does not contain any evidence of dealings be-
tween the Respondent and the Union after the entrance into the
March 1, 2002 contract until the Union’s letter of April 1, 2004,
in which the International Secretary-Treasurer James English
informed the Respondent “that the members of USWA Local
Union 5089 Unit 04 have become USWA Union 5414 Unit
06.” The Respondent, through Counsel Telfeian, responded to
the International’s Secretary-Treasurer English by letter of July
8, 2004, with the following text:
We are in receipt of your letter of April 1, 2004 in which you
advise that USWA Local 5089 Unit 04, which represented
various employees at our Mountain Valley Care and Rehabili-
tation Center in Kellogg, Idaho, was transferring its represen-
tational authority to USWA Local 5114 Unit 06. Because we
lack objective evidence that a majority of our Mountain Val-
ley employees wish representation by Local 5114, we are
prohibited by federal law from recognizing Local 5114 and
therefore decline to do so. Consequently we accept Local
5089’s disclaimer of interest in continuing to represent our
Mountain Valley employees. Should you have any questions,
please feel to contact me.
The following day, July 9, 2004, the Respondent’s executive
director sent a memo to all unit employees. The memo stated:
To: All USWA Local 5089 Represented Employees
From: Maryruth Butler, Executive Director
In April I received notification from the United Steel-
workers of America (USWA) stating that USWA Local
5089 Unit 04, which was your collective bargaining repre-
sentative, was transferring its representational authority to
USWA Local 5114 Unit 06.
Federal law prohibits us from recognizing or dealing
with a union that has not been chosen by a majority of our
employees. We have not been provided with any evidence
that a majority of you wish to re represented by USWA
Local 5114.
As a result we have told the USWA that we will not
recognize Local 5114 as your bargaining representative.
We have also told the USWA that because Local 5089 no
longer wants to represent you, we are accepting Local
5089’s decision to give up its bargaining rights.
What does this mean for you?
• You are no longer represented by any union.
• The contract that USWA Local 5089 negoti-
ated no longer applies to your employment.
• . . . .
• We will stop deducting union dues from the
paychecks of employees who authorized us
to do so. We will refund any dues that we
withheld and did not send to the union.
• Kindred is committed to providing all of its
employees with a quality work environment,.
The union’s decision to give up its bargain-
ing rights will have no major impact on your
working environment.
Should you have any specific questions regarding how
this change [sic], please let me know.
The Union by District 11 Staff Representative Powers re-
sponded to Counsel Telfeian’s letter by letter of August 2,
2004, which contains the following text:
I am in receipt of your letter to International Secretary
Treasurer James English in which you claim you are fed-
erally prohibited from recognizing Local 5114 as the bar-
gaining representative for the employees of Mountain Val-
ley Care and Rehabilitation Center.
By this letter I am reminding the employer we have a
Collective Bargaining Agreement in full force and effect
until February 28, 2005. There was no similar objection
from the employer when USWA Local 9052 was merged
with USWA Local 5089 and had the employer objected
the union would have viewed this as a repudiation of the
Collective Bargaining Agreement just as we do in this
case.
If I do not receive a letter from you by August 15,
2004 stating that the employer will continue to abide by
the Current Collective Bargaining Agreement and recog-
nize Local 5114 along with the International Union as the
administrator of that agreement, I’ll be filing various
charges with the NLRB on the employer’s illegal action.
The Union filed the instant charge on August 30, 2004.
On November 22, 2004, the Union, through Powers on Dis-
trict 11 letterhead, sent a letter to Counsel Telfeian requesting
to meet with the Respondent to negotiate a successor agreement
to the expiring contract. The Respondent through Telfeian,
answered by letter of December 13, 2004. The letter denied
that a valid contract existed, denied that the Union represented
its employees, and refused to meet and bargain with the Union
as the representative of unit employees.
C. Analysis and Conclusion
1. Narrowing the issue—The parties’ argued
alternate scenarios
The parties assume for purposes of their arguments herein,
and I agree, that if a USWA Local was the exclusive represen-
tative utilizing the services of the International as a bargaining
or representational agent, neither that local nor the International
could simply transfer that exclusive representative status to
another local without a variety of actions and procedures which
did not take place on this record. Conversely, the parties as-
sume, and I agree, that if the International was at all times the
exclusive representative of employees, it could use districts and
locals as its bargaining or representational agents in any manner
it chose, changing them at will without consequence to its own
status as the exclusive representative of unit employees. In
effect, the identification of the unit’s exclusive representative at
the time of the Respondent’s actions in July 2004 and thereafter
MOUNTAIN VALLEY CARE & REHABILITATION CENTER 289
determines the outcome of the case. If the local was the exclu-
sive representative, the complaint is without merit. If the Inter-
national was the exclusive representative at material times, the
complaint has merit.
The instant case, thus, presents a much focused issue: What
labor organization was the exclusive bargaining representative
of Respondent’s unit employees in the period immediately
preceding the Respondent’s July 2004 repudiation of the con-
tract and its further December 2004 refusal to recognize and
bargain with the Union? Relevant to that question is the history
of the bargaining concerning the unit. The parties derive dif-
ferent conclusions from the limited evidence presented.
The parties agree and the law is clear that a labor organiza-
tion which is the exclusive representative of employees for
purposes of collective bargaining under the Act may utilize
other labor organizations as its agents in fulfilling its role as the
employees’ representative. This being so, there is no legal im-
pediment to an assignment of different roles of local, district,
and International in representing employees on behalf of the
exclusive representative. The Government and the Charging
Party argue the International is the representative and the dis-
trict and locals are its agents. The Respondent argues that the
local is the representative and the district and International are
its agents. Either situation in the facts of the instant case would
not violate the exclusive representative’s obligation under the
Act.
Both the General Counsel’s and the Respondent’s arguments
start with the 1979 certification of the International as the ex-
clusive representative of the unit. The General Counsel and the
Charging Party argue that the International, once certified by
the Board, remained the unit employees’ exclusive representa-
tive at all times to the present and that the International neither
intentionally nor in any other manner at any time relinquished
that status. Thus, the Government argues, when the Respon-
dent in July 2004, in midcontract, withdrew recognition of the
Union and repudiated the contract, continuing to refuse to rec-
ognize and bargaining with the Union after the contract’s expi-
ration, it violated Section 8(a)(5) and (1) of the Act.
The Respondent starting with the 1979 certification of the
Union concedes that initially the Union was the exclusive rep-
resentative of the unit. Thereafter, at a time and under circum-
stances which the Respondent argues are simply unknown to
the parties, the Union transferred its exclusive representative
status initially to Local 9052; the International and the district
thereafter functioning as an agent of that local in representing
unit employees. The Respondent argues further that subse-
quently, Local 5089-04 obtained the bargaining rights through a
questionable transfer of representative status made unchal-
lengeable with the passage of time with the International and
district still functioning as the bargaining agents of the Local
rather than the other way round. The Respondent asserts this
was the status of matters until its receipt of the Union’s April 1,
2004 letter, quoted supra, when the Respondent learned of the
purported and procedurally invalid attempt to transfer Local
5089-04’s representative status to Local 5114-06.
The Respondent correctly asserts that Board law does not al-
low the transfer of a labor organizations exclusive bargaining
representative status to be undertaken simply by fiat and an-
nouncement. Further, the Respondent argues that it not only
could not properly recognize Local 5114-06 for that reason,
since Local 5089-04—the exclusive bargaining representa-
tive—clearly was abandoning its representative status, the Re-
spondent was privileged to accept its actions as a disclaimer of
interest, repudiate the collective-bargaining agreement and
thereafter refuse to recognize or meet and bargain with Local
5114-06.
2. What entity was the unit employees exclusive
representative at what periods?
a. Arguments of the parties
The 1979 Board certification establishes the International as
the unit’s exclusive representative. The testimony that the Un-
ion thereafter created freestanding Local 9052 whose members
were all from the unit establishes that the International began as
the exclusive representative and utilized its local and then Dis-
trict 36, now District 11 as bargaining agents.
The General Counsel and the Charging Party assert that this
arrangement was consistent with the exclusive pattern and prac-
tice of the International which, by constitutional limitation, held
all Board certifications in the name of the International as ex-
clusive bargaining representative of units of employees and did
the same with other non-Board recognitions holding all exclu-
sive representative roles in the name of the International. Dis-
trict and local level organizations never held and were constitu-
tionally prohibited from holding such exclusive representation
status with respect to any bargaining unit. Thus, the General
Counsel argues that not only was this true respecting this unit,
it was true for all the units covered by the International cur-
rently and historically. The International’s status as the unit’s
exclusive representative was explicit under the Board’s certifi-
cation. And, the General Counsel argues, the evidence indi-
cates and it should be strongly inferred from the constitutional
structure and relationship between the International and its
subordinate districts and local, the International’s exclusive
representative status continued at all times to the present.
The General Counsel argues further that there is no evidence
that any of the prior employers challenged the International’s
status or objected to the substitution of locals as the Interna-
tional’s bargaining agents which occurred and were announced
to the employers as described above. Finally the General
Counsel argues that the Board does not easily find that statutory
rights are easily waived, and therefore, any and all arguments
that such a waiver or abandonment of representational rights
has taken place here must be viewed with the greatest of skepti-
cism.
The Respondent argues that the entire record of contracts,
communications, grievances and related documents, internal
union correspondence between and among the International,
the district and the locals including communications by the
parties with the Board, all show in their totality that “by 1983,
if not earlier, the USW transferred its bargaining rights to
United Steelworkers of America Local 9052.” (R. Br. at 2.)
The Respondent notes that because employers are not al-
lowed under Board decisional law to challenge the actions of its
employees’ representative as being unauthorized by their con-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD290
stitutional documents,5 the fact that it was not constitutionally
permissible under the International constitution for the local to
become the employees’ exclusive bargaining representative is
of no consequence. From the employer’s perspective, argues
the Respondent, the employers had to accept the Union’s ac-
tions without considering internal union constitutional restric-
tions. Further, notes the Respondent, citing Sewell-Allen Big
Star, 294 NLRB 312 (1989), the fact that the earlier substitu-
tions of locals as the exclusive representative of unit employees
was also improper under Board law, is immaterial. This is so,
counsel contends, because those substitutions became unchal-
lengeable with the passage of 6 months under Section 10(b) of
the Act and the representational status of the local claiming
representational rights was legally binding on the parties there-
after.
The Respondent also argues that the International, through
its representatives during the entire period at issue and even to
date, not only never clearly declared or referred to the Interna-
tional as the exclusive representative of employees, but “both
implicitly and explicitly, acknowledged that it did not believe
that it was the employee’s bargaining representative” (R. Br. at
2–3) and only explicitly took that position well after the events
when the original Board certification of the International was
discovered. Counsel for the Respondent makes the assertion on
brief at 3:
If the USW itself did not believe it was the bargaining repre-
sentative, it is difficult to understand how it could have been
the bargaining representative or how it could have fulfilled the
bargaining representative’s functions.
The General Counsel responds that the Union’s agents con-
duct and their use of particular terms of art and titling was per-
haps inartful, but could never be fairly interpreted on the record
as a whole to rise to the level of an abandonment of representa-
tive status by the International. Further, the agents conduct was
somewhat confused by the Board’s Regional Office’s agents
mistaken theories of representation advanced during the course
of the investigation. Finally, the General Counsel argues, as-
suming arguendo, that the Respondent was ever in fact con-
fused or mislead as to whether or not the International was and
identified itself as the unit employees’ exclusive representative,
there was no possible doubt after the original certification of
the International was produced and the complaint issued alleg-
ing the International was the certified representative. Yet, the
Respondent, to the day of the trial, still contends the Interna-
tional is not the unit representative and that the Respondent is
in some fashion privileged to withhold recognition of the Inter-
national as that representative and to fail and refuse to bargain
with the Union.
b. Conclusions respecting the identity of the
bargaining representative
I have carefully considered the arguments of the parties
based on the record as a whole. For the reasons set forth below,
I find that the International was at all times the exclusive repre-

5 Citing Electra-Food Machinery, Inc., 241 NLRB 1232, 1233
(1979), enfd. 621 F.2d 956 (9th Cir. 1980), and Newtown Corp., 280
NLRB 350, 351 (1986), enfd. 819 F.2d 677 (6th Cir. 1987).
sentative of the unit and that at no time was any organizational
unit of the Union, District or local, anything more than a bar-
gaining agent of the International. Further, I find that the Re-
spondent should reasonably have known of this fact.
In reaching this conclusion I have essentially rejected the ar-
guments of the Respondent to the contrary. I do so for various
reasons. First, I find it important to note that the International
and its agents, in its dealings with the unit and the employers
who employed the employees over the years from the original
certification to the time of the hearing, was handling the busi-
ness of the unit in a typically, ordinary way. Since all units
were represented by the International, the International’s agents
at the district and local levels simply had no other experience.
There is simply no evidence, until the repudiation at issue
herein, that the business of representing the unit from the Inter-
national, district, and local levels was anything other than typi-
cal and ordinary and that its representation was handled in an
ordinary manner.
This is important for the International, in a way unusual for
labor organizations, has a longstanding, constitutionally re-
quired, apparently consistently followed, practice of holding the
status of exclusive representative of employees at the Interna-
tional level and using locals and districts as bargaining agents
assisting the International in conducting its representational
activities. When the Respondent argues that the agents of the
International and its district and locals at some point went
against the International’s explicit constitutional mandate to
shift the status of the units’ exclusive representative to various
locals, it urges a highly unlikely, apparently historically aber-
rant, course of conduct against the Internationals explicit stric-
tures and practices. While the Respondent is correct that an
employer may not question a union’s actions based on the em-
ployer’s reading of the union’s constitution, that is not to say
that in evaluating conduct, it is likely that a normal course of
conduct will continue to be followed absent evidence to the
contrary or some explanation or excuse for the quite extraordi-
nary, ultra vires actions the Respondent argues must have oc-
curred.
There was a certain deer in the headlights aspect to the con-
duct of the various union agents in their wording of the docu-
ments generated over the years, when viewed in hindsight from
the perspective of legal analysis of representational status. Even
viewing the documents in that light, I find them insufficient to
sustain the Respondent’s position. And, further, I do not accept
the Respondent’s argument that because the Union’s agents
were not clear and decisive in explaining and asserting their
position, it must have been because the Union had in fact
switched bargaining representatives against the strict limits of
the International’s constitution. Rather, I think that the Interna-
tional’s agents at all levels, whose experience is limited to ser-
vice with the International, a labor organization that holds all
representative status at the International level and simply does
not deal with issues relevant to situations where locals hold
exclusive bargaining representative status, simply did not un-
derstand the legal complications of situations their Union does
not confront. The suggestions of the Board agents respecting
issues of representational continuity of locals simply added to
their confusion. Metaphorically, the Respondent urges we look
MOUNTAIN VALLEY CARE & REHABILITATION CENTER 291
closely at the historic wanderings of these agents to determine
how they took another road. Rather, I find the choreography of
those agents to the extent it is shown on this record is irrelevant
because the agents simply did not know there were roads open
to them save for the straight and narrow one of International
representation. That locals could be the exclusive representa-
tive of the units was simply not a concept familiar to them.
Having considered the language on the various contracts and
the entire record on the issue as the Respondent advances it, I
do not find the record supports a finding that the International
ever relinquished its certified status. Further, the final contract
the Respondent entered into more than 6 months before it with-
drew recognition and repudiated the contract, quite clearly es-
tablishes that the International was the exclusive representative,
was acting like such a representative and that the Respondent
had recognized the international as its employees exclusive
representative. The Respondent cannot more than 6 months
thereafter rescind its contract based on a new interpretation of
the bargaining history.
I considered but found of marginal relevance and did not rely
on various noncontract documents showing how the parties
dealt with labor relations over time, how they identified them-
selves in correspondence and how in various forms the agents
characterized the parties. Thus, for example, it is true that the
International’s checkoff authorization form has a blank space
for the employees to fill in the local union number. The pre-
printed form, presumably used by the International for all its
bargaining units, in my view provides no evidence that the
Locals at any time were the exclusive representatives of the
unit. Given that the International is the exclusive representative
in all its units as required by its constitution as discussed supra,
the International’s form cannot support the proposition that the
instant events involved the shifting of representative status to
Locals even though prohibited by the International. Put more
simply, the fact that unit employees used an International form
is not persuasive evidence that the Internationals rules and re-
quirements were broken and a Local was the exclusive repre-
sentative of employees.
I note further that because the stand alone locals such as Lo-
cal 9052, and the unit-specific subnumbered elements of asso-
ciated locals, such as Local 5089-04, were specific to a single
bargaining unit—i.e., the unit, the Union tended to refer to the
unit by referring to the unit-specific local. Little support for the
Respondent’s position is established by such usage. Similarly,
such usage in grievances, correspondence to Federal Mediation
and Conciliation, letters between and among the parties and the
communication with the Board in unfair labor practice cases, in
their totality simply do not amount to much in the context of all
the events herein. And as explained above, even mistaken or
ambiguities usage by the agents of the International who had
never known a situation where any entity other than the Inter-
national was the exclusive representative or employees is of
relative insignificance when compare to the entire record in this
case.
3. The consequences of the International being the unit
representative at all material times
Having found the International was at all relevant times the
exclusive representative of unit employees, it follows that there
was never any shift or change in that status. Given that finding,
the International’s announcement of shifts in the identity of
bargaining agent locals is irrelevant to the representational
rights of the International or the obligations of the Respondent
to recognize those rights. Since the International at all times
represented the Respondent’s unit employees, the Respondent’s
withdrawal of recognition of the International, its repudiation of
the contract, its communication of those positions to employees
and its subsequent failure and refusal to meet and bargain with
the Union—all violate Section 8(5) and (1) of the Act. I so
find. I shall therefore sustain the complaint in its entirety.
In the event reviewing authority differs with the analysis and
conclusions set forth above, alternate findings may preclude a
remand of this matter. First, in the event that it is determined
that the Respondent was put in doubt as to who represented its
employees by the International’s communications to it regard-
ing the change in locals, I find that it was not thereby privileged
to withdraw recognition and repudiate the contract. Rather, I
find it had the duty to investigate the history of the relationship
and inquire of the International respecting the identity of the
exclusive representative. Having failed to undertake this course
of conduct before withdrawing recognition, I would find the
Respondent has violated Section 8(a)(5) and (1) of the Act.
In the event that it is determined that the Respondent was put
in sufficient doubt by the International’s communications to it
regarding the change in locals, so that it could withhold recog-
nition of the International until it had learned just who the ex-
clusive bargaining agent was, that confusion was satisfied
without doubt by the provision of the original certification of
the International as the exclusive representative of unit employ-
ees to the Respondent, by the International’s reaffirmation of
its exclusive representative status and by the Government’s
issuance of a complaint alleging that the International at all
times had been and remained the exclusive representative of
unit employees. From that time forward, which time encom-
passes the Respondent’s continued failure and refusal to recog-
nize and bargain with the International, there can be no justifi-
cation or excuse for the Respondent not to realize the status of
the International as described above. In such a circumstance,
the Respondent has no defensible basis for refusing to bargain
with the International and in so refusing it violated Section
8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent violated the Act as set
forth above, I shall order that it cease and desist therefrom and
post remedial Board notices. Further the language on the Board
notices will conform to the Board’s recent decision in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), that notices
should be drafted in plain, straightforward, layperson language
that clearly informs employees of their rights and the violations
of the Act found. Such notice will also take account of the fact
that the Respondent specifically notified unit employees in July
2004 that they were no longer represented by any labor organi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD292
zation and that the collective-bargaining agreement was null
and void.
Consistent with the request of the General Counsel and the
Charging Party, I shall direct that the Respondent recognize and
bargain with the Union as the exclusive representative of its
employees in the bargaining unit set forth below.
I shall also require the Respondent to rescind its repudiation
of the contract notifying the Union, in writing, that it will honor
its terms. The collective-bargaining agreement in place at the
time of the Respondent’s repudiation of the bargaining relation-
ship has now expired. The General Counsel, with the agree-
ment of the Charging Party, specifically noted that the Respon-
dent had honored the contracts terms save as discussed herein
and that no order was necessary or requested to make unit em-
ployees whole for harm suffered as a result of the contract re-
pudiation.
The General Counsel and Charging Party seek an order di-
recting the Respondent be ordered to make whole the Union for
any loss of dues suffered as a result of its failure to comply with
the dues deduction and remission provisions of the collective-
bargaining agreement, plus interest. Such an order is appropri-
ate where, as here, the employer ceased to comply with the
contractual provisions respecting dues. Parkview Furniture
Mfg., Co., 284 NLRB 947, 974 (1987), J. F. Swick Insulation
Co., 247 NLRB 626 (1980); Ogle Protection Service, 183
NLRB 682 (1970); Isis Plumbing Co., 138 NLRB 716 (1962). I
shall therefore include such an order.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and the record as a
whole and Section 10(c) of the Act, I make the following con-
clusions of law.
1. The Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Charging Party is, and has been at all relevant times, a
labor organization within the meaning of Section 2(5) of the
Act.
3. The International now and at all times material has repre-
sented the Respondent’s employees in the following unit, which
is appropriate for bargaining within the meaning of Section 9 of
the Act:
All employees of the Mountain Valley Care and Rehabilita-
tion Center, excluding all guards and supervisors as defined in
the National Labor Relations Act, as amended, Registered
Nurses, Confidential Employees, Business Office Clericals,
Administrator, the Director of Nursing, and the Dietary Su-
pervisor.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act in July 2004 and at all times thereafter by withdrawing
recognition of the Union as the exclusive representative of em-
ployees in the bargaining unit set forth above, repudiating the
parties March 1, 2002–February 28, 2004 collective-bargaining
agreement and failing and refusing to meet and bargain with the
International as the exclusive representative of its unit employ-
ees respecting the terms and conditions of a new collective-
bargaining agreement.
5. The unfair labor practices described above are unfair labor
practices within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]