Odd Fellows Rebekah Home

National Labor Relations Board - Board Decisions

Oct 31, 1977

233 N.L.R.B. 143 (N.L.R.B. 1977)

ODD FELLOWS REBEKAH HOME
Grand Lodge of Ohio, Independent Order of Odd
Fellows d/b/a Odd Fellows Rebekah Home and
National Union of Hospital & Nursing Home
Employees, Local 1199H, Retail, Wholesale and
Department Store Union, AFL-CIO. Case 9-CA-
10079
October 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On October 21, 1976, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's
exceptions and in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
On March 29, 1973, following a secret-ballot
election, the Union was certified by the National
Labor Relations Board as the exclusive collective-
bargaining representative of a unit of Respondent's
employees. In April 1973, Respondent and the Union
entered into a collective-bargaining agreement effec-
tive from April 24, 1973, to April 24, 1976. By letter
dated January 12, 1976, the Union advised Respon-
dent of its intention "to negotiate a new agreement"
and requested a meeting as soon as possible.
Respondent acknowledged receipt of this letter and,
thereafter, by letter dated February 11, 1976, advised
the Union that it had a "sincere and good faith doubt
that Local 1199H . . . represents a majority of the
employees in the bargaining unit . . . [and that it]
cannot and will not negotiate with the representa-
tives of Local 1199H . . . unless and until such
majority status is established."
The complaint alleges that Respondent violated
Section 8(a)(5) of the Act by its withdrawal of
recognition of and its refusal to bargain with the
Union. Respondent's claim of a good-faith doubt as
to the Union's continued majority status is based on
its contention that prior to Respondent's refusal to
I The Administrative Law Judge concluded that on the record before
him he could not find that the Union did not in fact enjoy majority status on
February iI.
233 NLRB No. 32
bargain more than 50 percent of its employees had
expressed their dissatisfaction with the Union to
various supervisory and managerial personnel. The
Administrative Law Judge agreed with Respondent
and dismissed the complaint in its entirety for the
reasons stated. We find merit in the General
Counsel's exceptions to the Administrative Law
Judge's findings and conclusions.
Since the Union was the certified bargaining agent
and a collective-bargaining agreement was in effect
at the time of Respondent's refusal to negotiate a
new contract, there was a presumption that the
Union's majority status would continue following
expiration of the contract and the burden was on
Respondent to show that the Union in fact no longer
enjoyed majority status' or that Respondent had a
reasonable doubt based on objective considerations
that the Union retained its majority status as of
February 11, 1976.2 In support of its position that its
decision to withdraw recognition as of April 24 was
based on such reasonable doubt, Respondent relied
on (1) employee turnover; (2) less than a majority of
employees on checkoff; (3) low level of union
activity; (4) union organizational efforts to secure a
majority; (5) the overt sentiments of employees; and
(6) the report of antiunion sentiments to supervisory
and management officials.
The Administrative Law Judge correctly rejected
Respondent's reliance on such factors as less than a
majority of employees on checkoff, low level of
union activity during the latter part of the contract
term, and increased union activity just prior to the
contract renewal date. It is well established that
employee membership or financial support of an
incumbent union does not reflect or establish the
number of employees who desire representation by
that union.3 The level of union activity similarly
cannot be used as a measure of union support among
unit employees.
However, we find that the Administrative Law
Judge erred in his conclusion that employee turn-
over, overt antiunion activity on the part of some
employees, and statements of antiunion sentiment
made to supervisors support Respondent's claim of a
reasonable doubt as to the Union's continued
majority support.
Employee turnover has been held not to justify a
belief that a union has lost its majority status because
it is assumed, absent evidence to the contrary, that
2 Dalewood Rehabilitation Hospital, Inc., d/b/a Golden Stare Habilitation
Convalescent Center, 224 NLRB 1618(1976).
3 Id. at 1619.
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new hires will support the union in the same ratio as
those they have replaced.4 The facts before us show
that as of February 11, 1976, the critical date herein,
there were 99 employees on the payroll, approxi-
mately 73 of whom had been hired since the Union's
certification. The record also shows that union
membership is voluntary on the part of new
employees, requiring only maintenance of member-
ship for those who choose to become and remain
members after the first 60 days of their employment.
Notwithstanding an employee turnover of approxi-
mately 75 percent, and notwithstanding the fact that
union membership and dues checkoff were purely
voluntary for new employees, as of February I 1,
1976, the day Respondent withdrew recognition from
the Union, 41 of the 73 employees hired since the
election had executed dues-checkoff authorizations.
From this, it appears that a clear majority of the
postcertification hires not only wanted union repre-
sentation but were willing voluntarily to contribute
financial support to the Union. Thus, employee
turnover not only was not a factor supporting
Respondent's claim of loss of majority, but, to the
contrary, the conduct of the new employees strongly
indicates that the Union continued to enjoy majority
status.
The overt antiunion activities put forth by Respon-
dent as another "objective" consideration consisted
of a campaign by two employees against continued
representation by the Union. Their campaign basi-
cally consisted of circulating antiunion flyers which
they had prepared and duplicated. As a result of this
campaign and a countercampaign by union support-
ers, sentiments of some of the employees became
polarized. Respondent's supervisors tended to cate-
gorize employee groupings as either being for or
against the Union, and, from their observations, they
concluded that a substantial number of employees
opposed the Union. In the absence of any evidence
as to how the supervisors were able to distinguish
between prounion and antiunion employees, it is
clear that the supervisors' observations of employee
groups and their assumptions of antiunion attitudes
based on these observations do not provide objective
grounds for believing that majority union support
had been dissipated.
With regard to expressions of antiunion sentiments
by employees to supervisory and management
officials, it is clear that Respondent's representatives
assumed employees had expressed sentiments to the
effect that they no longer desired to be represented
4 King Radio Corporation, 208 NLRB 578, 583 (1974).
5 The Administrative Law Judge concluded that of the 99 employees in
the unit 56 of them (including the 10 employees listed above) had in one way
or another indicated to Respondent's supervisory staff that they did not
want the Union to represent them. Although the testimony regarding the
by the Union on the basis of statements that had no
such import. It is well established that to support a
reasonable doubt of union majority support employ-
ee expressions of antiunion sentiment must have
been made prior to the employer's withdrawal of
recognition and must convey an intent not to be
represented by the union as distinguished from a
desire not to become members for any of a number
of reasons or an inability or unwillingness to pay
dues. Nevertheless, Respondent attempts to support
its refusal to bargain by evidence of employees'
statements which either do not manifest a desire not
to be represented by the Union, or were made after
February 11, 1976.
Carl Moot stated that he did not feel he needed to
be a member because he already was a member of a
UAW union and had a withdrawal card from that
union. This statement obviously does not establish
that Moot did not want the Union to represent him.
Laura Lovelace and Otho Sheets both expressed the
view that they did not want to belong to the Union
because they were social security annuitants and did
not see how the Union could help them. The cost of
union membership may be a significant factor to
employees of limited earnings, but their expressions
do not support the conclusion that they did not
desire to be represented by the Union with respect to
working conditions in which they were concerned.
Joyce Fahl had been the union steward at the
Home. Whatever weight might otherwise be given to
her expressions of frustration over the Union's
inability to achieve certain goals, it is clear that she
did not resign her position as union steward until late
March 1976, more than a month after Respondent
withdrew recognition.
Employees Gallagher, Karen Palmer, and Pinker-
man did not make known their sentiments until after
February 11, 1976, and, accordingly, cannot be relied
upon by Respondent to support its doubt as of that
date.
Employees Crippen, May, and Preston did not
testify, but the testimony of Respondent's supervisors
fails to support the contention that any expressions
by them of their sentiments were made prior to
February 11, 1976.
Accordingly, Respondent did not have expressions
of antiunion sentiment from a sufficient number of
employees5 to support a reasonable doubt that a
majority of the employees desired to be represented
by the Union. Thus, although the evidence shows
that there were some employees opposed to contin-
substance and timing of expressions of sentiment of several other employees
is vague and ambiguous, acceptance of Respondent's factual assertions as to
each of the remaining employees establishes that Respondent, at most, had
expressions of antiunion sentiment from only 46 employees, less than a
majority of the employees in the unit.
144
ODD FELLOWS REBEKAH HOME
ued representation by the Union while others had
expressed dissatisfaction with the Union, taking the
record evidence as a whole, we conclude that
Respondent did not have a reasonable doubt, based
on objective considerations, that a majority of the
unit employees wanted the Union to represent them.6
Accordingly, we find that Respondent's withdrawal
of recognition and its refusal to bargain violated
Section 8(a)(5) of the Act, and we will order
Respondent to recognize and, upon request, bargain
with the Union as exclusive representative of the
employees in the appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Grand Lodge of Ohio, Independent Order of Odd
Fellows d/b/a Odd Fellows Rebekah Home, Spring-
field, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with National Union of
Hospital & Nursing Home Employees, Local 1199H,
Retail, Wholesale and Department Store Union,
AFL-CIO, as the exclusive representative of the
following appropriate bargaining unit:
All employees of the Employer employed at the
Odd Fellows Rebekah Home facility in Spring-
field, Ohio, but excluding all registered nurses, all
licensed practical nurses, individuals who perform
services on a contract basis, guards, professional
employees, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Recognize and, upon request, bargain collec-
tively with National Union of Hospital & Nursing
Home Employees, Local 1199H, Retail, Wholesale
and Department Store Union, AFL-CIO, as the
exclusive representative of all employees in the
appropriate unit, described above, with regard to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its Springfield, Ohio, facility copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional
Director for Region '9, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
6 Member Murphy agrees with the conclusion reached herein but does
not rely on the absence of antiunion expressions by a majority of the
employees, as her colleagues do. This has not been required in any case in
the past. No rational basis appears for concluding that such expressions by
46 of the 99 in this unit warrants Respondent's asserted good-faith doubt of
continuing majority status; for if46 were sufficient, what of 45 or 44? This-
plus the fact that the Administrative Law Judge's credibility resolutions
seem extremely doubtful-leads her to concur in the result on the facts
herein rather than on the number of employees involved.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with National
Union of Hospital & Nursing Home Employees,
Local 1199H, Retail, Wholesale and Department
Store Union, AFL-CIO, as the exclusive repre-
sentative of employees in the following appropri-
ate bargaining unit:
All of our employees employed at the Odd
Fellows Rebekah Home facility in Spring-
field, Ohio, but excluding all registered
nurses, all licensed practical nurses, individ-
uals who perform services on a contract
basis, guards, professional employees, and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL recognize and, upon request, bargain
collectively with the aforesaid Union as the
exclusive representative of all employees in the
appropriate unit, described above, with regard to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if an understanding is reached, embody such
understanding in a signed agreement.
GRAND LODGE OF OHIO,
INDEPENDENT ORDER OF
ODD FELLOWS D/B/A
ODD FELLOWS REBEKAH
HOME
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This case
was heard before me in Springfield, Ohio, on June 30 and
July 1, 6, 7, and 8, 1976, upon a complaint issued by the
Regional Director for Region 9 of the National Labor
Relations Board on April 12, 1976, pursuant to a charge
filed by National Union of Hospital & Nursing Home
Employees, Local 1199H, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, herein called the Union, on
February 23, 1976, and an answer timely filed by Grand
Lodge of Ohio, Independent Order of Odd Fellows d/b/a
Odd Fellows Rebekah Home, herein variously called the
Respondent, the Employer, and the Home. The complaint
alleges a violation of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, hereinafter referred to
as the Act, by the Respondent by refusing to bargain with
the Union. The Respondent's answer denies the commis-
sion of any unfair labor practices, and affirmatively
contends that the Respondent has had, at all times
material, a good-faith doubt that the Union represents an
uncoerced majority of its employees in the appropriate
bargaining unit alleged by the complaint and admitted by
the Respondent.
Upon the entire record,' including my observation of the
demeanor and testimony of the witnesses and the logical
consistency and inherent probability thereof, and after due
consideration of the briefs filed by the General Counsel
and the Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the Respondent admits, and I find
that the Respondent is an Ohio not-for-profit corporation
engaged in the operation of a rest home and nursing center
in Springfield, Ohio; that during the past year, a represen-
tative period, the Respondent received gross revenues in
excess of $100,000 and purchased goods and supplies value
in excess of $3,000 from suppliers located in Ohio who in
turn received said goods and supplies directly from points
located outside the State of Ohio; and that the Respondent
is now and has been, at all times material, an employer
engaged in commerce within the meaning of the Act.
1 After the close of the hearing, the Respondent filed a motion dated
August 23, 1976, to correct the transcript of the record. The General
Counsel having stated he has no objection thereto, and as the corrections
relate to minor errors and accord with my own recollection, the motion to
correct is hereby granted. The transcript contains numerous other omissions
and grammatical and spelling errors which I do not deem sufficiently
material to warrant correction, and which should appear obvious to any
reviewing authority.
11. LABOR ORGANIZATION
The Union is now, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. SUPERVISORS
On the basis of the pleadings, stipulations by the parties,
posttrial briefs, and the record as a whole, I find that the
following named individuals occupied the positions set
forth after their names and were supervisors within the
meaning of Section 2(11) of the Act at all times material to
the issues at bar: 2
Mae R. Stamps
George A. Cummins
Donella Ely
Dortha Marsh
James Morris
Elsie Parker
Armor Leach
Jean Owens
Administrator
Assistant Administrator
Director of Food Service
Director of Nursing
Supervisor of Maintenance
Supervisor of Housekeeping
Laundry Supervisor
Night Charge Nurse
IV. THE UNFAIR LABOR PRACTICES
A. Background
The background facts are not in dispute and this
recitation thereof is derived from the pleadings and
stipulations of the parties. The Union was certified by the
National Labor Relations Board, hereinafter referred to as
the Board, on March 29, 1973, as the exclusive collective-
bargaining representative of the Respondent's employees
in an appropriate bargaining unit consisting of "All
employees of the [Respondent] employed at the Odd
Fellows Rebekah Home facility in Springfield, Ohio, but
excluding all registered nurses, all licensed practical nurses,
individuals who perform services on a contract basis,
guards, professional employees and supervisors as defined
in the Act," subsequent to a Board-conducted election
wherein 57 employees voted for the Union, 16 voted
against the Union, 2 were challenged, and there was I void
ballot. Following certification, the Respondent and the
Union negotiated and executed a collective-bargaining
agreement covering the employees in the aforesaid unit,
effective from 7 a.m., April 24, 1973, until 7 a.m., April 24,
1976. By letter of January 12, 1976,3 the Union requested
the Respondent to meet as soon as possible and negotiate a
new agreement. The Respondent, by counsel, acknowl-
edged receipt of the January 12 letter, by a reply letter
dated January 22. Thereafter, by letter of February 11, the
Respondent advised the Union (1) that it had a "sincere
and good faith doubt" that the Union represented a
majority of the unit employees; (2) that Respondent could
not and would not negotiate with the Union unless and
2 I find that Bonnie Beck is an office clerical employee occupying the
position Jf resident's account secretary who had been instructed to report
on daily happenings in the Home, although not specifically instructed to
report on union sentiments of employees.
3 All dates hereinafter occurred in 1976 unless specifically noted
otherwise.
146
ODD FELLOWS REBEKAH HOME
until the Union established its majority status; (3) that
Respondent had filed a petition on February II, with the
Board's Regional Office seeking an election in which the
Union's majority status could be established; and (4) that
the Respondent was terminating the existing collective-
bargaining agreement effective 7 a.m., April 24. The same
day, February 11, the Respondent submitted a petition for
election to the Regional Office which was duly docketed as
Case 9-RM-749. The unfair labor practice charge in the
instant case was filed February 23. Complaint issued, as
noted above, on April 12, and the Regional Director then,
on April 13, dismissed the petition in Case 9-RM-749. On
April 22, the Respondent filed a request for review of the
dismissal of the petition with the Board in Washington,
D.C. On May 24, the Board issued a ruling on administra-
tive action affirming the dismissal of the petition, subject to
its reinstatement, if appropriate, upon disposition of the
case at bar.
B. Basic Findings of Fact
The collective-bargaining agreement expiring April 24,
provides, in pertinent part, that union membership is not
compulsory, but that employees who do become members
must maintain that membership for the duration of the
contract, subject to a right to withdraw from membership
during the 60 calendar days following the effective date or
execution date of the contract, whichever is the later.
Withdrawal from membership is accomplished by sending
a certified letter to both the Union and the Employer
during the 60-day period provided. The contract also
provides for voluntary checkoff of union dues upon receipt
of an employee's written request therefor. The parties, by
stipulation, submitted a joint exhibit showing that on
February I I, there were 99 employees in the unit, of whom
54 were listed as having their union dues checked off.
Additionally, Union Steward Rice testified that in July or
August 1975 she turned in 3 checkoff authorizations for
Powell, Mendoza, and Cave which have never been given
effect by the Respondent. Cave has since, on January 21,
submitted a written request to the Employer that her name
be immediately removed from the union rolls. Similarly,
North, Ware, Swisshelm, Petrey, Adkins, John Palmer, and
Linda Parish submitted written withdrawal requests to the
Employer prior to February 11.4 It thus appears, assuming
arguendo that Rice is credible regarding the three checkoff
authorizations she claims to have submitted, that as of
February 11, no more than 49 employees voluntarily
remained on checkoff. The exhibit further shows that 75 of
the 99 employees were hired subsequent to the Board-
conducted election which preceded the Union's certifica-
tion.
I4 refused to permit the Respondent to introduce written requests by
employees to withdraw from the Union postdating February 11 (which
Respondent refers to as part of its "showing of interest") because the refusal
to bargain admittedly commenced on February II and any good-faith
doubt of majority warranting the Respondent's February II action must
necessanly rest on events prior to February I I. The Respondent further
excepts to the fact that I consistently sustained objections to Respondent's
questions of employees regarding their "support" of the Union. I did in fact
do so, although the question was more often put in the form of an inquiry
into employees' subjective "desires," and I made it plain to Respondent that
The General Counsel called only one witness, Union
Steward Rice, who testified that in July or August 1975, she
had turned over dues deduction authorizations signed by
employees Margaret Powell, Lolita Mendoza, and Janice
Cave to the company bookkeeper, but that no dues were
withheld from their wages, and that although she gets such
authorizations from some probationary employees she does
not submit them until they have completed their probation-
ary period. Union Area Director Jones was called as an
adverse witness by the Respondent and conceded that the
only physical evidence of union majority he has, other than
some oral statements of support from some unspecified
number of employees whose identity he did not know,
consists of the dues-checkoff records. I do not credit his
assertion of oral statements of support from employees
because he first refused to name them, thereby clearly
implying he knew their names, and then, after being
directed to do so, testified that he knew no such names and
admitted he knows no names of employees other than
those on checkoff.
The Respondent proffered testimony from 54 witnesses,
including 45 unit employees, regarding statements made by
57 unit employees 5 to managerial and supervisory person-
nel, in the presence of such persons, or in the presence of
Resident's Account Secretary Beck who reported the
employees' statements to Administrator Stamps and/or
Assistant Administrator Cummins as they occurred. The
overwhelming majority of these employee statements were
made in December 1975 or January and all were ultimately
reported to Stamps by her subordinate supervisors and
Beck. An explanation for the timing of most of these
statements by employees may be found in the fact that
during at least the months of January and February there
was considerable active antagonism between employees
who supported the Union and those who did not. The
genesis of this antagonism is somewhat obscure, although it
was clearly exacerbated by the posting of prounion posters,
presumably by union supporters, and antiunion posters
which were prepared and posted primarily by employees
Carolyn Adkins and Linda Farish. It appears, according to
Adkins, whom I credit on this point, that the Union
commenced putting up posters urging employees to
support it as part of a general campaign to revitalize its
support among the employees in late December 1975 or
early January, and that Adkins and Linda Farish prepared
and posted the notices urging employees not to support the
Union sometime during the first 2 weeks in January.
Further fuel was added to the fire of intramural dissension
by prounion employees reporting antiunion employees'
work deficiencies to supervisors, and vice versa. Addition-
ally, there were reports and rumors circulating among the
employees of coercive and threatening acts perpetrated by
union adherents. Thus, through at least this 2-month
such uncommunicated "desires" were not, in my opinion, evidence that
would support a good-faith doubt. I did, however, give the Respondent wide
latitude in exploring whether or not employees had indicated to the
Company's management, prior to February II. that they did not support the
Union. I have carefully considered these rulings and conclude they were
correct and free from prejudicial error. See Retired Persons Pharmnacy, ta
NRTA-AARP Pharmacy, 210 NLRB 443.450(1974).
5 Of these 57 employees, only 17 had outstanding unrevoked dues
deduction authorizations on February I 1.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, the employees were in a turmoil and tended to
gravitate toward one or the other of the two groups, even to
the extent of requesting a job transfer to so do. It is clear
from the record that the employees were open, even
vociferous, about their respective attitudes toward the
Union and became polarized into two opposing factions of
employees. There is no evidence that either the Respondent
or the Union instigated or promoted this polarization.
Rather, it appears to have come about solely because the
employees themselves, influenced no doubt by the factors
recited above, disagreed on the question of union adher-
ence. It is in this context of dissension and vigorous
campaigning on both sides of the question that most of the
statements of employees relied on by the Respondent
arose.
There was relevant testimony from at least two witnesses
regarding the statements and attitudes of each of 48 of the
employees. The evidence relating to the sentiments of the
remaining nine came from but one witness for each. After
the testimony of Adkins, who but for Steward Rice was the
first unit employee witness, General Counsel requested and
I granted sequestration of the witnesses. Thereafter it was
quite obvious from the statements of the employee
witnesses themselves that they had been called by the
Respondent to testify without any prior preparation
regarding the content of their testimony, and that their
answers were spontaneous and unrehearsed. I also note
from my observation of their demeanor and responses that
in some cases they were not conversant with the words
used by counsel, were therefore somewhat confused at
times, and only gave partial answers to some of the
questions put to them because they were unable to
remember on such short notice some relevant details of
their conversations with management and others with
regard to the Union. Therefore, although (with the
exception of Edith Gallagher, whose assertion that she
talked to no one regarding her union desires I do not credit
because she appeared uncertain in her testimony and Ely,
Beck, and Cummins testified credibly to the contrary) their
testimony occasionally appears confused or incomplete, I
am of the opinion from my observation of their demeanor
on the stand that this was due to a very human failure of
instant recall which does not adversely affect their
credibility except in those instances where their statements
may appear to conflict with more detailed testimony of
other credible witnesses. Even in these latter instances I
find the testimony of the witnesses to be complimentary,
rather than contradictory, in most instances. Similarly, I
find that the fact that other witnesses may recall statements
by an employee that the employee did not mention in his
or her testimony reflects nothing more than that the
employee's recollection failed or that he or she was not
asked the appropriate question to elicit such information.
Contrary to the General Counsel, I do not find that a
failure of a witness to relate each and every instance in
which he or she discussed the Union precludes other
witnesses from testifying thereon, nor do I find that this
6 Richendollar. Pinkerman, Petrey, Parker, John Palmer, Swisshelm,
Justice, Maddox, McCormick, Miller, Moler. Monroe, Enid Anderson, Amy
Barry, Maxine Vada Berry, Campbell, Cave, Cottrell, Engle, Opal (Smith)
Angle, Hazel Farish, Gallagher. Graser, Hendricks, Hesson, Hunter,
failure to fully report reflects on credibility because, as the
record shows, the witnesses simply were not asked to report
on each and every such instance. Similarly, I reject General
Counsel's credibility arguments insofar as they rely on
confusion of dates or semantical differences because these
alleged deficiencies in the testimony are neither sufficient
to adversely affect the overall impact of the testimony nor
to require conclusions different from the ones I reach from
a complete examination of all the evidence. Accordingly, I
have found Cummins and Beck, both of whom were
particularly impressive and forthright witnesses, Stamps
and the other Employer supervisors, all of whom gave me
no reason to believe from their demeanor that they were
not being truthful in their testimony, to be credible
witnesses. I have carefully considered inconsistencies in the
testimony in the light of all the surrounding circumstances
and other more consistent testimony and find nothing
sufficiently unacceptable to warrant any changes in my
findings hereinafter set forth.
As early as the summer of 1975, and even before, some
employees began expressing their dissatisfaction with the
Union in various ways and this continued until the
Respondent refused to bargain on February 11. I do not
refer to the possibility those expressions of sentiments may
have continued after February 11 because I excluded all
evidence relating to postrefusal-to-bargain events and
place no reliance thereon as a basis for my findings and
conclusions herein. These statements and accompanying
acts by employees grew to a crescendo in December 1975
and January. Subsequent to the Union's request for
bargaining of January 12, Administrator Stamps collated
the reports she had received from her supervisors and Beck
regarding employee sentiment together with the statements
of employees made directly to her, and after examination
with counsel of the results thereof the Respondent notified
the Union that it doubted its majority and filed a petition
for election, as hereinabove recited, on the basis of an
asserted belief that some 62 of the 99 unit employees no
longer wished to be represented by the Union.
From my examination of the evidence, I conclude that at
the time of the refusal to bargain Stamps had received
reports that 38 employees 6 (in addition to Carolyn Adkins
and Linda Farish who by their aggressive antiunion
campaigning openly indicated their desire not to be
represented by the Union), through statements that they
did not want the Union, did not want to be represented by
it, did not need it, did not want any part of it, did not
believe in it, did not like it, it was of no benefit to them, the
Union was no good, it did nothing for employees, they
were opposed to the Union, they hoped they did not get the
Union back, and similar statements of the same import,
were dissatisfied. Of course each employee did not make all
of these statements but the foregoing is a representative
summary of their individually expressed statements.
Hubbard, Townsend, Wade, Waldron, Ware, Weaver, Williams. Larason,
Luttrell. Rose, Moot, and Sheets.
148
ODD FELLOWS REBEKAH HOME
In addition, Stamps was aware that seven 7 employees
had said they would quit if they had to join the Union,
nine s had expressed a desire to withdraw from union
membership, four9 did not want to belong to the Union,
one 10 reported that she was not a union supporter because
she could not afford it, and six" had said they had joined
the Union because of fear of reprisals or because they had
been harassed by union adherents.'2
I am convinced that the foregoing statements made by
employees with regard to their sentiments toward the
Union were spontaneous and voluntary expressions of their
honest feelings on the matter, and were not the result of
Employer pressure or unfair labor practices.
C. Discussion and Conclusions
The standards applicable to the determination of
whether or not the Respondent permissibly refused to
bargain are firmly established and were recently succinctly
stated by the Board in Dalewood Rehabilitation Hospital,
Inc. d/b/a Golden State Habilitation Convalescent Center,
224 NLRB 1618 (1976), as set forth below:
In Terrell Machine Company, the Board explained
the test as follows:
It is well settled that a certified union, upon
expiration of the first year following its certifica-
tion, enjoys a rebuttable presumption that its
majority representative status continues. This
presumption is designed to promote stability in
collective-bargaining relationships, without im-
pairing the free choice of employees. Accordingly,
once the presumption is shown to be operative, a
primafacie case is established that an employer is
obligated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (1) that at the time of the refusal the union
in fact no longer enjoyed majority representative
status; or (2) that the employer's refusal was
predicated on a good-faith and reasonably
grounded doubt of the union's continued majori-
ty status. As to the second of these, i.e., "good-
faith doubt," two prerequisites for sustaining the
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. [This second point
means, in effect, the assertion of doubt must be
raised "in a context free of unfair labor practic-
es."]
It is also well settled that the existence of a prior
contract, lawful on its face, raises a dual presumption of
majority - a presumption that the Union was the
majority representative at the time the contract was
executed, and a presumption that its majority contin-
T Emily Anderson, Hubbard, Larason, Luttrell, Rose, White and Wilson.
I Karen Palmer, Loveless, Cnppen, Fahl (the union steward), Hines,
North, Preston, Rife, and Swisshelm.
9 Moot, Young, Wilcox, and Underwood.
1t Robinson.
ued at least through the life of the contract. Following
the expiration of the contract, the presumption con-
tinues and, though rebuttable, the burden of rebutting
it rests on the party who would do so. [Citations
omitted.]
The General Counsel relies on the extant presumption of
majority in the instant case and takes the position that the
Respondent has failed to meet its burden of rebutting the
presumption. On the other hand, the Respondent contends
that the test of good-faith doubt based on objective
considerations has been met and, further, that the evidence
shows that the Union no longer in fact enjoys majority
representative status.
In support of its assertion of good-faith doubt the
Respondent relies on cumulative factors which it enumer-
ates as (1) employee turnover; (2) less than a majority of
employees on checkoff; (3) low level of union activity; (4)
union organizational efforts to secure a majority; (5) the
overt sentiments of the employees; and (6) the report of
employee antiunion sentiments to the Respondent's man-
agement. Additionally, the Respondent adverts to its filing
of a petition for a Board-conducted election "to preserve its
good faith position."
The Respondent concedes and I find that the 75 percent
employee turnover since the 1972 election is not, "standing
alone," sufficient to support a finding of good-faith doubt.
Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965).
However, it is a factor which may be considered in
conjunction with other factors relied on. Taft Broadcasting,
WDAF-TV, AM-FM, 201 NLRB 801, 803 (1973). Similarly,
I find that the fact that less than a majority of unit
employees were on unrevoked dues checkoff does not show
a loss of majority, nor does it establish a reasonably based
doubt of that majority. Guerdon Industries, Inc., Armor
Mobile Homes Division, 218 NLRB 658 (1975). I would
note, however, that the employees' communications to the
Respondent that they wished to withdraw from union
membership constitute more than a mere request to be
relieved from checkoff and do rise to the stature of a valid
objective consideration supportive of a finding of good-
faith doubt of majority, Phil-Modes, Inc., and Harold Berlin
d/b/a Berlin Coat ManufaCturing Co., 159 NLRB 944, 959
(1966); Stresskin Products Co., Division of Tool Research
and Engineering Corporation, 197 NLRB 1175, 1178 (1972).
I find that item (3) which asserts a low level of union
activity is unsupported by any reasonable quantum of
evidence and is eroded by the fact that the Union was
instrumental, as late as January, in securing Jack Parker's
reinstatement. Further, as to (4), I do not find it unusual,
but rather quite predictable, that the union should engage
in increased organizational efforts to bolster its bargaining
power on the eve of the expiration of the existing collective-
bargaining agreement, nor do I find this activity or
accompanying statements of union officials which are
plainly directed at strengthening the Union's bargaining
" Swisshelm. May, Richendollar, Moore, John Palmer, and Petrey.
12 An examination of the names of employees set forth in the margin will
demonstrate that some employees made more than one of the statements
recited above and that the total number of employees making such
statements is 57.
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position to be valid bases on which to posit a good-faith
doubt of majority.
It is true, as the Respondent contends in (5) and (6), that
employees freely and openly discussed their sentiments
toward the Union and it had to be clear to the Respondent
from the extensive and explicit postings by both factions
that there was considerable disagreement among the
employees with regard to the Union. The testimony clearly
revealed a pervasive atmosphere in the Home of tension
among the employees punctuated with complaints of
harassment, statements of fear of reprisal from union
adherents, and accusations of actual reprisal visited upon
pets and automobiles of employees who would not support
the Union. Again, this aura of uneasiness and dissension
could not have escaped the notice of the Employer, nor
could the huddling together of groups of employees of
opposing views. Against this background, the Respondent
was fully justified in concluding that Adkins, Linda Farish,
and the other 38 employees named in footnote 6, who in
various ways indicated their dissatisfaction with the Union,
wished to repudiate the Union as their representative.
The knowledge that seven employees had threatened to
quit, rather than join the Union, warranted a belief that
they did not want to be represented by the Union (Cf.
Service Canvas Company, Inc., 198 NLRB 88 (1972)
(Kolesnick)), and the expressions of a desire to withdraw
from union membership by nine employees which were
communicated to the Employer, in an atmosphere free of
Employer coercion, gave rise to a reasonable conclusion by
the Respondent that they did not want union representa-
tion, Phil-Modes, Inc., supra. Further, the statements by
four that they did not want to join the Union, while not
conclusive of their desires, absent some other explanation
of the reason why, might well give the Respondent
reasonable cause to doubt they were favorably inclined
toward union representation. I discount reliance on the
report that Robinson did not support the Union because
she couldn't afford it as a valid objective consideration
because on its face it would appear that Robinson might
well support the Union if she could afford it. As to those
employees who stated they had joined the Union because
of harassment or fear of reprisals, the Respondent could
fairly conclude that their support of the Union was limited
to coerced membership and that the fact they joined under
pressure implied a resistance to union representation that
was overcome only by fear, whether such fear was well
founded or not. Thus, the Respondent had reports that 56
13 See Stresskin Products Co., supra at 1178-79, for Administrative Law
Judge Wilson's perceptive discussion of the difference between a good-faith
"doubt" and "certitude."
unit employees (excluding Robinson) had indicated their
dissatisfaction with the Union in various ways.
Although there may be weaknesses in some of the factors
relied on by the Respondent, when considered individually,
I am of the opinion, as the Respondent contends, that a
consideration of the evidence in its entirety establishes that
the Respondent had sufficient objective grounds upon
which to reasonably conclude that there was a serious
doubt of the Union's majority status,i3 and that such doubt
arose in a context free of unfair labor practices or any
evidence of bad faith by the Employer.14 In so finding I do
not rely on the filing of an RM petition by the Respondent,
which the Respondent attempts to equate with an RD
petition filed by employees, because the filing of a petition
for election by an employer is not necessarily indicative of
employee support thereof, whereas a petition filed by
employees requires a showing by the employees themselves
that they do not wish to be represented by a given union.
Although I find that the Respondent had a "good-faith
and reasonably grounded doubt of the union's continued
majority status" when it refused to bargain with the Union
on February 11, 1 cannot, as the Respondent urges I do, on
the basis of the evidence before me, find that the Union did
not in fact enjoy majority status on February 11, even
though the Union's stated proof of majority consists only
of the dues-checkoff list which is suspect in view of the
attempts and reported desires of employees listed thereon
to withdraw from membership, nor need I do so in view of
my finding that the Respondent had a good-faith doubt
warranting the refusal to bargain.
Having considered all the evidence and the arguments of
the parties, I conclude that the Respondent had reasonable
grounds to believe that the Union no longer enjoyed
majority status. Accordingly, I conclude that the Respon-
dent did not violate Section 8(aX5) or (1) of the Act as
alleged in the complaint, and make the following:
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. General Counsel has not established by a preponder-
ance of the evidence that the Respondent has violated the
Act as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
14 Taft Broadcasting, supra.
150