Petoskey Geriatric Village, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 800 (N.L.R.B. 1989)

800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Petoskey Geriatric Village , Inc. and United Steel-
workers of America , AFL-CIO-CLC. Case 7-
CA-26039
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
DEVANEY
On a charge filed by the United Steelworkers of
America, AFL-CIO-CLC (the Union) on July 16,
1986, the General Counsel of the National Labor
Relations Board , by the Regional Director for
Region 7 , issued a complaint on August 27, 1986,
against the Respondent , Petoskey Geriatric Village,
Inc., alleging that it violated Section 8(a)(5) and (1)
of the National Labor Relations Act. The Re-
spondent filed a timely answer admitting in part
and denying in part the allegations of the com-
plaint.
On April 27, 1988 , the Respondent , the Union,
and counsel for the General Counsel filed with the
Board a stipulation of facts and transmittal of
formal papers. On July 13, 1988, the parties filed a
motion to amend the stipulation of facts .' The par-
ties agreed that the stipulation of facts, as amended,
and attached formal papers constitute the entire
record in this case . The parties waived a hearing
and issuance of a decision by an administrative law
judge and stated their desire to submit the case di-
rectly to the Board for findings of fact, conclusions
of law , and Decision and Order . On June 27, 1988,
the Board issued an order granting the motion, ap-
proving the stipulation , and transferring the pro-
ceeding to the Board . Thereafter, the Respondent
and the General Counsel filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
FINDINGS OF FACT
I. JURISDICTION
rectly from sources outside the State of Michigan.
Accordingly , in agreement with the stipulation of
the parties , we find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
On December 1, 1978, the Union was certified as
the exclusive representative of a unit of employees2
of Beverly Enterprises d/b/a Beverly Manor Con-
valescent Centers (Beverly) that operated a nursing
and convalescent center at 1500 Spring Street, Pe-
toskey, Michigan . Following the Union 's certifica-
tion, Beverly refused to bargain . The Union filed
an unfair labor practice charge and , on June 4,
1979, the Board found that Beverly had violated
Section 8 (a)(5) and ( 1) and ordered Beverly to rec-
ognize and bargain in good faith with the Union.
Beverly Manor Convalescent Centers, 242 NLRB 751
(1979). The Board Order provided, inter alia, that
the certification year would begin "on the date
[Beverly] commences to bargain in good faith with
the Union as the recognized bargaining representa-
tive in the appropriate unit." Id. at 753. After the
Sixth Circuit Court of Appeals denied enforcement
of the Board 's Order and remanded the case for
further consideration of the appropriateness of the
certified unit,3 the Board reaffirmed its unit deter-
mination and bargaining order on September 30,
1982. 264 NLRB 966. In 1984, the Sixth Circuit
Court of Appeals again denied enforcement of the
Board's Order and directed that the case be re-
manded to the Regional Director for further con-
sideration of the unit issue. 727 F.2d 591. On April
5, 1984, the Regional Director issued a report find-
ing that the unit, as certified by the Board , was ap-
propriate.
On April 1 , 1985, while Beverly's exceptions to
the Regional Director 's report were pending before
the Board , the Respondent leased Beverly 's nursing
Petoskey Geriatric Village, Inc., a Michigan cor-
poration, at all material times has been engaged in
the operation of a nursing and convalescent home
at 1500 Spring Street , Petoskey, Michigan. During
calendar year 1985, a representative period , the Re-
spondent had gross revenues in excess of $500,000.
During the same period , the Respondent purchased
and caused to be shipped to its Petoskey facility
goods and materials valued in excess of $5000 di-
r The motion is granted
2 The parties stipulated , and the Board previously found , that the fol-
lowing unit is appropriate for the purpose of collective bargaining within
the meaning of Sec . 9(b) of the Act:
All full-time and regular part -time food service employees , mainte.
nance employees , laundry employees , housekeeping employees, Li-
censed Practical Nurses , nurses aides and orderlies , physical therapy
aide and ward clerk and central supply employee employed by the
Employer at its 1500 Spring Street , Petoskey , Michigan facility, but
excluding confidential employees , professional employees, office cler-
ical employees , guards and supervisors as defined in the Act.
Beverly Manor Convalescent Centers, supra, enf. denied and remanded 661
F.2d 1095 (6th Cir 1981); 264 NLRB 966 (1982), enf denied and remand-
ed 727 F.2d 591 (6th Cir. 1984); 275 NLRB 943 (1985).
8 Beverly Manor Convalescent Centers v NLRB, 661 F.2d 1095 (6th Cir.
1981)
295 NLRB No. 80
PETOSKEY GERIATRIC VILLAGE
home at 1500 Spring Street in contemplation of a
future purchase . The Respondent assumed control
of the nursing home and , without hiatus, took over
patient care at the facility and since April 1, 1985,
has operated substantially the same business as Bev-
erly operated before that date . The Respondent
hired a majority of Beverly's employees in the unit
certified by the Board on December 1, 1978. A ma-
jority of the Respondent 's initial work force had
been employed by Beverly in the bargaining unit
prior to that date . The Respondent additionally
hired some of Beverly's supervisors.
On May 22, 1985 , the Union requested that the
Respondent commence bargaining . On June 28,
1985 , the Board issued a Second Supplemental De-
cision and Order directed to Beverly and its "offi-
cers, agents, successors and assigns," reaffirming
the appropriateness of the December 1, 1978 certi-
fied unit and its 1979 Order requiring, inter alia,
that the certification year commence upon good-
faith bargaining . 275 NLRB 943. On April 30,
1986 , the Union again requested bargaining. On
June 25 , 1986 , the Respondent rejected the Union's
bargaining requests.
Prior to April 1 , 1985 , a majority of the bargain-
ing unit employees were union members, union
meetings were held among unit employees, and
union officers and stewards were elected. After
April 1 , 1985 , the Union did not sign up any mem-
bers from among the bargaining unit employees,
hold union meetings among unit employees , collect
dues, or select officers or stewards from the bar-
gaining unit employees.
On April 30, 1987, the Respondent employed ap-
proximately 87 bargaining unit employees, 27 of
whom were employed by Beverly on March 30,
1985 . Only 8 of the 27 were in the bargaining unit
as of September 9, 1978.
B. Contentions of the Parties
The General Counsel contends that the Respond-
ent is a successor to Beverly within the meaning of
NLRB v. Burns International Detective Agency, 406
U.S. 272 (1972). To support this position, the Gen-
eral Counsel relies on the facts that the Respondent
hired a majority of Beverly 's unit employees, em-
ployed some of the same supervisors , and assumed,
without hiatus or change in patients, the operation
of 1500 Spring Street . Further, a majority of the
Respondent 's original work complement had been
employed in the Beverly unit. According to the
General Counsel, the fact that the Respondent
leased the Petoskey facility in contemplation of a
future purchase , rather than purchasing it outright,
does not undercut a successorship finding. IMS
801
Mfg. Co., 278 NLRB 538 ( 1986), enfd . 813 F.2d 113
(6th Cir . 1987).
The General Counsel further argues that the
Union enjoys an irrebuttable presumption of major-
ity status . In its original 1979 unfair labor practice
determination , the Board ruled , in accordance with
Mar-Jac Poultry Co., 136 NLRB 785 ( 1962), that
the certification year would commence when Bev-
erly began to bargain in good faith . The General
Counsel thus asserts that because no bargaining has
occurred , the certification year has not expired.
The General Counsel contends that the irrebuttable
presumption of majority status applies to successor
employers, like the Respondent , who are requested
to bargain during the certification year . IMS Mfg.
Co., supra.
Alternatively , the General Counsel argues that
even if the irrebuttable presumption of majority
status does not apply to the Respondent , there is, at
a minimum, a rebuttable presumption of majority
support that the Respondent failed to rebut. Fall
River Dyeing Corp. v. NLRB, 476 U .S. 1139 ( 1987).
Thus, the General Counsel contends that the Re-
spondent did not establish , based on objective con-
siderations , that it had a good -faith doubt that the
Union continued to represent a majority of unit
employees . The Respondent 's reliance on unit em-
ployee turnover between September 9, 1978, and
April 30, 1987, and March 30, 1985 , and April 30,
1987, is misplaced according to the General Coun-
sel because that turnover postdates its 1985 and
1986 refusal to bargain with the Union .4 Addition-
ally, the General Counsel argues that there is no
evidence that the Respondent 's refusal to bargain
with the Union was based on the facts that, since
April 1, 1985, the Union has not signed up unit em-
ployees as members, held meetings , or selected offi-
cers or stewards from the unit . Had the Respond-
ent relied on these factors, the General Counsel
submits that they are nonetheless insufficient to
support a good-faith doubt of majority support.
Physicians Community Hospital, 231 NLRB 512, 514
(1977). Finally, the General Counsel asserts that al-
though the Union's May 22, 1985 bargaining
demand was more than 6 months prior to the
charges being filed, nonetheless the complaint is
not barred under Section 10(b) of the Act because
the Respondent failed to timely raise this affirma-
tive defense . Federal Management Co., 264 NLRB
107 (1982).
The Respondent contends that, assuming ar-
guendo, it is a Burns successor to Beverly , any pre-
4 The General Counsel argues that the decline in union membership
after the Respondent's unlawful refusals to bargain is the foreseeable con-
sequence of its Sec. 8(a)(5) conduct. NLRB Y. Fall River Dyeing Corp.,
775 F 2d 425 (1st Cir. 1985), affd . sub nom. 476 U .S. 1139 (1987).
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sumption of continued majority status is conclusive
for only 1 year following Board certification.
Thereafter, the Respondent contends that it lawful-
ly could refuse to bargain if it had a good-faith
doubt that the Union represented a majority of em-
ployees. The Respondent asserts that it had a good-
faith doubt when it took over the Petoskey facility
based on the fact that, after April 1, 1985, the
Union did not sign up any unit employees as mem-
bers, hold union meetings , or select stewards or of-
ficers from among the unit employees . In addition,
by April 30, 1987, only 27 of 87 employees in the
bargaining unit had been employed as of April 1,
1985, and only 8 of those 27 were employed in the
unit at the time of certification.5
The Respondent further argues that it should not
be required to recognize and bargain with the
Union because there is no basis for assuming that
the Union now enjoys majority support, 10 years
after the Board certification. In support of its posi-
tion, the Respondent relies on St. Regis Paper Co.,
285 NLRB 293 (1987), in which, on remand from
the First Circuit Court of Appeals, a Board majori-
ty agreed with the court that bargaining was no
longer warranted . The Board majority relied on
the 4-year delay since the Board 's determination
that mechanics had accreted into the existing unit,
the closing of affected plant locations, the transfer
of unit employees, and the fact that none of the
current mechanics was a union member or had
checked off union dues . The Respondent also relies
on Impact Industries v. NLRB, 847 F.2d 379 (7th
Cir. 1988), in which the Seventh Circuit denied en-
forcement of the Board's Gissel6 bargaining order
on the basis that 7 years had elapsed between the
representation election and the Board 's bargaining
order and because the Board had failed to consider
changed circumstances , including employee turn-
over and new management.
C. Discussion
For the following reasons, we find that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the
Union.
Initially, we agree with the General Counsel that
the Respondent is a successor employer to Beverly.
The Board's traditional test for successorship
status, affirmed by the Supreme Court in NLRB v.
Burns Security Services, 406 U.S. 272 (1972), and
s In support of its "good-faith doubt" argument , the Respondent relies
on Golden State Habilitation Center Y . NLRB, 566 F.2d 77 (9th Cir . 1977),
denying enf. 224 NLRB 1618 (1976); Bellwood General Hospital v. NLRB,
627 F. 2d 98 (7th Cir 1980), denying enf. 243 NLRB 88 (1979 ); and W &
W Steel Ca Y. NLRB, 599 F.2d 934 ( 10th Cir . 1979), denying enf. 232
NLRB 74 (1977)
6 NLRB v. Gissel Packing Co., 395 U.S. 575 ( 1969).
most recently in Fall River Dyeing Corp. v. NLRB,
476 U.S. 1139 (1987), is whether there is continuity
in the employing enterprise. We find that the Re-
spondent admitted facts sufficient to establish sub-
stantial continuity in this case . Thus, the Respond-
ent admits that it (1) assumed operations of 1500
Spring Street on April 1, 1985, (2) continued, with-
out hiatus, to operate the facility as a nursing and
convalescent center, (3) took over care of the same
patients, (4) hired a majority of former Beverly em-
ployees in the unit certified by the Board, and (5)
hired some of the same supervisors. Moreover, the
Respondent stipulated that a majority of its em-
ployees employed on or about April 1, 1985, were
employed in the Beverly bargaining unit. Accord-
ingly, we find that the Respondent is a successor to
Beverly which, on request, was obligated to recog-
nize and bargain with the Union. See New London
Convalescent Home, 274 NLRB 1442, 1443 (1985),
enfd. sub nom. NLRB v. Eastern Connecticut Health
Services, 815 F.2d 517 (2d Cir. 1987); Magnolia
Manor Nursing Home, 260 NLRB 377, 381 (1982).'
We further find that the Union requested recog-
nition and bargaining and that the Respondent re-
fused to recognize and bargain with it in May 1985.
Thus, on May 22, 1985, the Union wrote the Re-
spondent requesting bargaining over unit employ-
ees and the parties have stipulated that all times
material, as expressed by its June 25, 1986 letter,
the Respondent has refused to bargain with the
Union."
The Respondent argues that, even assuming it is
a Burns successor, it lawfully refused the Union's
bargaining requests based on its good -faith doubt
that the Union represented a majority of unit em-
ployees. We reject this argument and instead find
that the Union was conclusively presumed to rep-
resent the Respondent's unit employees at the time
of the Union's 1985 and 1986 bargaining demands.
It is well settled that absent unusual circum-
stances a union 's majority status is conclusively
presumed to exist during the initial certification
7 We further find, in agreement with the General Counsel, that the fact
that the Respondent leased 1500 Spring Street in anticipation of a future
purchase, rather than purchasing it outright , does not negate its succes-
sorship status . See generally Sorrento Hotel, 266 NLRB 350 (1983), East
Belden Corp., 239 NLRB 776 (1978 ), enfd . 634 F .2d 635 (9th Cir. 1980).
8 Although this May 1985 bargaining request and refusal occurred
more than 6 months before the filing of the unfair labor practice charge,
the Respondent did not challenge the refusal -to-bargain allegation under
Sec. 10(b) of the Act Sec. 10(b) of the Act provides that-
[N]o complaint shall issue based upon any unfair labor practice oc-
curring more than six months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against
whom such charge is made... .
As the 10(b) statute of limitations is an affirmative defense that is waived
if not timely raised , the Respondent is estopped from relying on this de-
fense . Christopher Street Corp ., 286 NLRB 253 (1987); Federal Manage-
ment Co. , supra.
PETOSKEY GERIATRIC VILLAGE 803
year. Brooks v. NLRB, 348 U.S. 96 (1954). Where a
successor employer takes over during the initial
certification year, the conclusive presumption of
majority status extends to it. Dynamic Machine, 221
NLRB 1140, 1142 (1975), enfd. 552 F.2d 1195 (7th
Cir. 1977); IMS Mfg., 278 NLRB 538, 541-542
(1986), enfd. 813 F.2d 113 (6th Cir. 1987). Al-
though the certification year ordinarily dates from
the Board's certification, where an employer or its
successor refuse all bargaining , the certification
year will not commence until good -faith bargaining
occurs. See, e.g., Bell & Howell Co., 220 NLRB
881, 883 (1975); NLRB v. Aquabrom , 855 F.2d
1174, 1183-1184 (6th Cir. 1988). To hold otherwise
would thwart the purposes of the Act.
[I]t is error to refuse to enforce a bargaining
order when it is conceded that there has been
a Board election , the Union was duly certified,
and the Company thereafter refused to bargain
in good faith . Requiring still another Board
election in such a situation undermines the
central purpose of the National Labor Rela-
tions Act, since it gives an employer an incen-
tive to disregard its duty to bargain in the
hope that over a period of time a union will
lose its majority status.
NLRB v. Patent Trader, 426 F.2d 791, 792 (2d Cir.
1970).
Here , Beverly never bargained with the Union
following the December 1978 certification. Neither
did the Respondent bargain , despite the Board's
Second Supplemental Order and the Union's bar-
gaining requests . Accordingly, we find that the cer-
tification year has not commenced and that the
Union is irrebuttably presumed to represent a ma-
jority of unit employees. Mar-Jac Poultry, supra. By
failing and refusing to bargain with the Union in
these circumstances, the Respondent violated Sec-
tion 8(a)(5) and (1).
Alternatively, even if a rebuttable presumption
of union majority status were applicable to the
facts of this case, we find that the Respondent vio-
lated the Act by refusing the Union's bargaining
requests . The Board has held that , following expi-
ration of the certification year, the presumption of
majority status is rebuttable. The Employer there-
after may withdraw recognition when the Union
lacks majority status or when the Employer has a
good-faith doubt of the Union's continued majority
status . For a "good faith doubt" to be valid , it must
be based on objective considerations and arise in a
context free of unfair labor practices . Pennex Alu-
minum Corp., 288 NLRB 439 (1988), and cases
there cited. The employer's burden of establishing
good-faith doubt is a heavy one. Pennco, Inc., 250
NLRB 716, 716-717 (1980), enfd . 684 F.2d 340 (6th
Cir. 1982).
The parties have stipulated that prior to the Re-
spondent commencing operations at the Petoskey
facility, a majority of the unit employees were
union members, union meetings were held, and
stewards and officers were elected. There is no evi-
dence that when the Union demanded bargaining
in May 1985 and April 1986 the Union had lost its
majority status. Rather, the employee turnover fig-
ures on which the Respondent relies for its claim
of good-faith doubt date from April 30, 1987, ap-
proximately 2 years after its bargaining obligation
arose. The Respondent cannot rely on evidence
postdating its failure to fulfill its bargaining obliga-
tion to justify its conduct. See generally Distileria
Serralles, 289 NLRB 51 (1988). Moreover, the Re-
spondent 's reliance on employee turnover is mis-
placed as the Board presumes that new employees
support the Union in the same ratio as those they
replace. Laystrom Mfg. Co., 151 NLRB 1482, 1484
(1965), enf. denied 359 F.2d 799 (7th Cir. 1966).
See also Alexander Linn Hospital Assn., 288 NLRB
103 (1988).
The Respondent also incorrectly relies on the
fact that, after April 1, 1985, the Union did not
sign up new members, hold meetings for unit em-
ployees, or select officers or stewards from among
the unit . This lack of new membership and employ-
ee union activity was a foreseeable consequence of
the Respondent 's refusal to bargain . NLRB v. Fall
River Dyeing Corp., 775 F.2d 425 (1st Cir. 1985),
affd. 476 U.S. 1139 (1987). See also NLRB v. Aqua-
brom, supra . Moreover , there is no evidence that
the Respondent relied on these factors when it re-
fused to bargain with the Union. Even had the Re-
spondent relied on these facts, they are insufficient
to establish a good-faith doubt of the Union's ma-
jority status . See, e .g., Physicians Community Hospi-
tal, supra.9 Accordingly, we find that, as the Re-
spondent failed to substantiate its claim of good-
faith doubt, it violated the Act by failing and refus-
ing to bargain with the Union.
Finally, the cases relied on by the Respondent
do not conflict with our 8(a)(5) finding. First,
Impact Industries v. NLRB, supra, cited for the
principle that a bargaining order is unwarranted
where there are changed circumstances and a sub-
stantial time lapse between an election and Board
9 "Majority Status" refers to whether a majority of unit employees
support union representation , not whether they are union members. Ben-
nett Packaging Ca, 285 NLRB 602 (1987). The Board has held that a de-
cline in union membership is not a reliable indicator that employees do
not support a union Orion Corp., 210 NLRB 633 (1974), enfd . 515 F.2d
81 (7th Cir 1975). Member Devaney finds it unnecessary to pass on this
last factor.
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
order, is readily distinguishable as a Gissel bargain-
ing case. Thus, although some courts have denied
enforcement of the Board's Gissel bargaining orders
where there is a substantial lapse between the elec-
tion and the Board order, on the theory that the
employer's unfair labor practices likely will have
dissipated, rendering a fair election possible, the
same is not true where the lapse follows Board cer-
tification. See, e.g., NLRB v. Western Temporary
Services, 821 F.2d 1258, 1270 (7th Cir. 1987);
NLRB v. Star Color Plate Service, 847 F.2d 1507,
1509 (2d Cir. 1988). Cf. NLRB v. Koenig Iron
Works, 856 F.2d 1 (2d Cir. 1988).
Similarly, St. Regis, supra, can be differentiated
on the basis that it involved the accretion of em-
ployees into an existing bargaining unit beyond the
certification year. Further, there were substantial
changes in St. Regis' operations between the accre-
tion and the Board's bargaining order, including
the closing of facilities and the transfer of equip-
ment and unit employees. Also, current employees
in the accreted job classification had never joined
the union or had union dues checked off by St.
Regis. Under all of these circumstances, the Board
majority 1 ° found that as
Most of the changed circumstances in [St.
Regis'] operations and in the appropriate unit
since the Board's original unit determination
which have resulted in the constant erosion
and deterioration of the unit have been invol-
untary and imposed by factors over which [St.
Regis] has had very little imput or control . . .
the bargaining unit is no longer appropriate
. . . [and] the Board's bargaining order has
become moot . . . . [285 NLRB 293, 295
(1987).]
Conversely, here, there has not been any sub-
stantial change in the nature of the Respondent's
operations; further, as noted above, any loss of
union membership and support is a foreseeable con-
sequence of the Respondent's refusal to recognize
and bargain with the Union.
Finally, Golden State Habilitation Center v.
NLRB, 566 F.2d 77 (9th Cir. 1977), denying enf.
224 NLRB 1618 (1976); Bellwood General Hospital
v. NLRB, 627 F.2d 98 (7th Cir. 1980), denying enf.
243 NLRB 88 (1979); and W & W Steel Co. v.
NLRB, 599 F.2d 934 (10th Cir. 1979), denying enf.
232 NLRB 74 (1977), are distinguishable as all in-
volve refusals to bargain outside the initial certifi-
cation year in circumstances in which the courts
determined that the employers had reasonable
doubts of the unions' continued majority status at
the time of withdrawal of recognition. And, unlike
here, these cases did not involve employer unfair
labor practices which had as a foreseeable conse-
quence the loss of union support.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of the Respondent
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time food service
employees, maintenance employees , laundry
employees , housekeeping employees , Licensed
Practical Nurses, nurses aides and orderlies,
physical therapy aide and ward clerk and cen-
tral supply employee employed by the Em-
ployer at its 1500 Spring Street, Petoskey,
Michigan facility; but excluding confidential
employees, professional employees, office cler-
ical employees , guards and supervisors as de-
fined in the Act.
4. At all times material , the Union has been the
exclusive collective-bargaining representative of
the employees in the unit described above.
5. The Respondent is a successor for labor rela-
tions purposes to Beverly Enterprises d/b/a Bever-
ly Manor Convalescent Centers, in the operation of
its business at 1500 Spring Street , Petoskey , Michi-
gan.
6. Since about May 22, 1985 , and at all times
thereafter, the Respondent has failed and refused to
recognize and bargain collectively in good faith
with the Union as the exclusive representative of
the Respondent 's employees in the unit described
above, and therefore has engaged in, and is engag-
ing in , unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) of the
Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order that it cease and desist and, on re-
quest, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
10 Chairman Stephens dissented . He would have found a bargaining
obligation in St. Regis.
PETOSKEY GERIATRIC VILLAGE
propriate unit . See generally Mar-Jac Poultry Co.,
136 NLRB 785 (1962).11
ORDER
The National Labor Relations Board orders that
the Respondent, Petoskey Geriatric Village, Inc.,
Petoskey , Michigan, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and, on re-
quest, bargain collectively with the United Steel-
workers of America, AFL-CIO-CLC as the exclu-
sive bargaining representative of its employees in
the following unit:
All full-time and regular part-time food service
employees , maintenance employees, laundry
employees, housekeeping employees, Licensed
Practical Nurses, nurses aides and orderlies,
physical therapy aide and ward clerk and cen-
tral supply employee employed by the Em-
ployer at its 1500 Spring Street, Petoskey,
Michigan facility; but excluding confidential
employees, professional employees, office cler-
ical employees , guards and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering
with , restraining , or coercing its employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request , bargain in good
faith with the Union as the exclusive bargaining
representative of its employees in the unit found
appropriate respecting rates of pay, hours of work,
or other terms and conditions of employment; and,
if an agreement is reached , embody it in a written
and signed agreement.
(b) Post at its Petoskey, Michigan facility copies
of the attached notice marked "Appendix." 12
" In his complaint, the General Counsel sought a visitatorial clause,
but we find such to be unnecessary in the circumstances of this case. See
Cherokee Marine Terminal, 287 NLRB 1080 (1988)
12 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 Nation-
al 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."
805
Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with the United
Steelworkers of America, AFL-CIO-CLC as the
exclusive collective -bargaining representative of
the following unit of our employees:
All full-time and regular part-time food service
employees , maintenance employees, laundry
employees, housekeeping employees, Licensed
Practical Nurses, nurses aides and orderlies,
physical therapy aide and ward clerk and cen-
tral supply employee employed by the Em-
ployer at its 1500 Spring Street, Petoskey,
Michigan facility; but excluding confidential
employees, professional employees, office cler-
ical employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain in good faith with
the Union and, if an understanding is reached,
embody it in a written agreement.
PETOSKEY GERIATRIC VILLAGE, INC.