Raymond Convalescent Hospital, Inc.

National Labor Relations Board - Board Decisions

Feb 5, 1975

216 N.L.R.B. 494 (N.L.R.B. 1975)

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raymond Convalescent Hospital , Inc. and Service &
Hospital Employees Union , Local 399, SEIU,
AFL-CIO. Case 31-CA-4152
February 5, 1975
DECISION AND ORDER
By ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
On July 2, 1974, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the Charging Party filed
exceptions and a supporting brief, and the Respon-
dent filed an answer thereto.
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 considered the record and the attached
Decision in light of the exceptions, the brief, and the
answer and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
Issues
The primary issues are:
1. Whether Respondent through its agent, Mildred V.
Ames, violated Section 8(a)(1) of the Act by: interrogating
an employee concerning his union sentiments ; telling
employees that Respondent could offer better benefits than
the Union could; telling employees that they could come
into her office to inform her if they did not want the
Union; and telling employees that key employees would
quit if the Union were designated as collective -bargaining
representative.
2. Whether Respondent violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the Union
where Respondent was a successor to an employer having
an outstanding contract with the Union and where
Respondent did not have a good-faith doubt that the
Union continued to represent the employees.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally , and to file briefs . Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire records of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed.
The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (C A. 3, 1951 ) We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was tried at Los Angeles, California, on March 26,
1974. The charge was filed on December 17, 1973, by
Service & Hospital Employees Union, Local 399, SEIU,
AFL-CIO, herein called the Union. The complaint issued
on February 21, 1974, and alleges that Raymond Convales-
cent Hospital , Inc., herein called Respondent , violated
Section 8(a)(1) and (5) of the National Labor Relations Act
as amended.
I Errors in the transcript have been noted and corrected.
2 The allegations in the complaint relating to commerce and labor
organization were not responded to in the answer filed by Respondent.
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with its principal
place of business in Pasadena, California, where it operates
a nursing home. Respondent commenced business on or
about November 19, 1973, and by projection for the 12-
month period ending November 18, 1974, it will realize a
gross volume of business in excess of $100,000. During this
same period, by projection, it will receive in excess of
$200,000 from the Medi-Cal Health Program. Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.2
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Through November 18, 1973, Park Raymond Convales-
cent Hospital, herein called Park Raymond, operated the
nursing home now run by Respondent (Raymond Conva-
lescent Hospital , Inc.). Respondent , as owner and lessor of
the building housing Park Raymond, foreclosed on the
lessee , Park Raymond, took possession , and continued
without interruption to operate a proprietary nursing home
at the same location . Respondent used the same equip-
Pursuant to Sec. 102.20 of the Board's Rules Regulations , Series 8, as
amended, all allegations of the complaint not responded to in the answer
are deemed admitted
216 NLRB No. 85
RAYMOND CONVALESCENT HOSPITAL, INC. 495
ment, employed many of the same employees and
supervisors and produced substantially the same services
as Park Raymond previously had done. Park Raymond
employed approximately 40 employees and of them 38
were employed by Respondent on November 19, 1973,
with no interruption in their jobs. On December 1, 1973,
four employees were hired, two of whom had previously
worked for Park Raymond. Between December 3 and 7,
1973, four additional employees were hired, none of whom
had worked for Park Raymond. Respondent continued to
perform services for substantially the same patients as had
Park Raymond.
For many years Park Raymond had a collective-bargain-
ing contract with the Union .3 The last contract, by its
terms, is effective from April 17, 1972, through April 16,
1975.
Mildred V. Ames was administrator of the nursing home
from November 19, 1973, when Respondent took over the
nursing home, until February 11, 1974, when she left
Respondent's employ.4 From September 1970 to October
3, 1973, Ames had been administrator for Park Raymond.
During the approximately 6 weeks between October 3 and
the commencement of her employment with Respondent
on November 19, 1973, Ames had worked for another
employer. During that period Myra Burman was adminis-
trator for Park Raymond. Burman was told by her
employer at Park Raymond to contact Ames and tell her
what had transpired at the facility in the time that Burman
had been administrator. On November 14 or 15, 1973,
Ames and Burman met and discussed some possible
employee changes. Burman mentioned that the employees
were strong union people. Ames replied "I will have
nothing to do with the Union" or "I will kick the Union
out as soon as I get back to Park Raymond."
On December 1, 1973, Respondent received a letter
dated November 29 in which the Union stated that it had
been informed that Respondent would give effect to the
contract the Union had with Respondent's predecessor.5
The letter enclosed copies of the collective-bargaining
agreement for Respondent to sign. Respondent neither
signed the contract nor wrote a response to the letter .6
Instead, on December 7, 1973, Respondent filed with the
Board a Petition for an Election in Case 31-RM-361.
Respondent has not recognized or bargained with the
Union, claiming that it has no legal obligation to do so.7
On December 10, 1973, Union Business Agent Booker
Graham came to the nursing home and was told by Ames
that as far as she was concerned the place was not union.
By letter dated February 20, 1974, the Regional Director
3 The bargaining unit was:
All dietary employees , maids , ,janitors, storekeepers, maintenance
employees, grounds keepers , orderlies, nurses aides, licensed vocational
nurses , and laboratory helpers employed at the nursing home but
excluding all professional employees, including physicians and regis-
tered nurses , office clerical employees , guards, watchmen and supervi-
sors as defined in the Act.
The complaint alleges , the answer by its failure to respond admits, and I
find that the unit is appropriate for the purposes of collective bargaining
within the meaning of Sec . 9(b) of the Act.
4 It is admitted and I find that Ames was a supervisor within the
meaning of the Act.
S The letter in part read . "... I am also informed that you will give full
force and effect to the collective- bargaining agreement entered into by
Service and Hospital Employees Union and the predecessor Employer,
for Region 31 of the Board notified Respondent' that
complaint was going to issue in the instant case and that
Respondent's Petition for an Election was therefore
dismissed.
B. The Alleged Violations of Section 8(a)(1) of the
Act
1. The alleged interrogation of Brown
Theodore Brown, Jr., is an employee of Respondent in
the housekeeping department. During the first week of
December 1973, Brown had a conversation with Adminis-
trator Mildred V. Ames in Ames' office. No one else was
present at the time. According to Brown Ames asked him
what his opinion was concerning the Union; Brown replied
there were advantages and disadvantages but that he felt
he didn't want to belong to the Union; Ames said that
Leipzig (the owner of Respondent) no longer had a
contract with the Union; and Ames also said that she
wanted to get everyone's opinion concerning how they felt
about the Union.
Ames' testimony concerning this conversation was
substantially different. According to Ames, Brown spoke
to her in her office when he was doing maintenance work
there. Ames averred that Brown asked her about the
Union; she replied that they didn't have a union contract;
Brown asked, "Does that mean we don't have to belong to
the Union?"; she said, "Mr. Leipzig does not have a union
contract"; and Brown said he didn't want to belong to the
Union. Ames, in her testimony, denied that she asked
Brown his opinion about the Union and further denied
that she said she was going to ask other employees their
opinions.
I credit Ames' version of the conversation. Ames was a
direct and convincing witness.8 There is much testimony in
the record concerning information volunteered by employ-
ees to Ames concerning the Union, but other than Brown's
there is no testimony that Ames interrogated employees
concerning the Union .9 Brown was not a convincing
witness . At one point in his testimony he averred that he
did not recall Ames saying that Leipzig had no contract
with the Union.10 Later in his testimony, he acknowledged
that Ames did mention something about Leipzig not
having a contract with the Union.
My observation of Ames and Brown as they testified and
the content of their testimony leads me to the conclusion
that Ames was the more accurate witness of the two, and I
therefore credit her denial that she interrogated Brown
recognizing the said Union as the bargaining representative for those
employees... "
9 Though the complaint alleges an unlawful refusal to bargain since on
or about November 29, 1973, General Counsel in his brief contends that the
refusal to bargain occurred on December 1, 1973, which is the date
Respondent received the Union's demand.
7 There is no contention nor evidence that Respondent unlawfully
changed any wages, hours, or conditions of employment.
8 It is noted that at the time of her testimony she was no longer employed
by Respondent.
9 As found below Ames statement to employees at a meeting on
December 7 was not an interrogation
io That statement was made by Ames to a number of employees when
they asked her about the Union.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning his union sympathies . I shall therefore recom-
mend that paragraph 12(a) of the complaint , which appears
to allege that interrogation as a violation of the Act, be
dismissed.
2. The December 7, 1973, meeting
On December 7, 1973, Ames called a meeting of
Respondent 's employees . About 20 or 25 employees
attended the meeting at 2:45 p.m. that day. There is a
substantial conflict in testimony as to what was said.
Ames testified as follows : Ames began the meeting by
reading a statement that had been prepared by Harry
Stang, Respondent 's attorney. She read it word for word as
follows:
I want to take a few minutes of your time to discuss
a subject which is of concern to all of us . I hope you
will pardon me for reading this, but I do not want to be
misquoted later on.
Last Friday we received a letter from Local 399. The
letter demanded that we sign a new contract with Local
399. Obviously, we will continue the wages and benefits
which you now have . However , we are quite concerned
about the clause in the contract which would require
each and every one of you to join the Union and pay
dues as a condition of keeping your jobs here. [At this
point in her presentation, Ames read art. 2 , pars. a, b, c,
and d of the contract Park Raymond had with the
Union. Those pars. relate to union security.] In light of
the fact that several of our employees have told me that
they don't wish to be members of the union, we are
worried about the effect this clause would have on our
employees.
It is my intention to review the situation with Mr.
Leipzig before we make any decisions . However, I did
want to let you know about the situation because it is
so important to you.
If you have any questions, I will try to answer them.
Ames then asked whether there were any questions.
Employee Biggs told the group that he did not want the
Union and he didn 't think he received enough for his dues.
Biggs added that Park Raymond had been fair in giving
him merit increases and he preferred to go along with that
system rather than joining the Union . Licensed Vocational
Nurse (LVN) Evelyn Reser then said , "I will just tell you
one thing, if we have to fool with that Union, I am
quitting ." Another employee , Mary Margo said that she
did not receive any benefit from the Union and she did not
want the Union . Margo then said, "Let's just vote on it
now," and a number of people put up their hands . At that
point Ames said , "Just wait a minute . We couldn 't vote it
in or out at this time as I understand it. I don 't want you to
make a hasty decision , please , think about it and you can
let Mr . Leipzig or I know at a later time what you really
feel about it." Employee Lee Thompson then asked Ames
questions concerning the cost to join , how dues were
collected , what benefits there were , and the starting rate
under the contract. Ames answered Thompson and told
her she was free to read the contract any time . Another
employee asked if Leipzig was going to recognize vacation
status or time that had been built up with Park Raymond,
and Ames replied that she couldn 't answer the question
then but that any time the employee came to the office
they would discuss it. Ames went on to say that she was
always willing to discuss any problem with the people and
her door was always open . Another employee asked what
the benefits would be if they didn 't join the Union. Ames
picked up the paper she had read from and said,
"Obviously , we will continue the wages and benefits which
you have now."
Four witnesses in addition to Ames testified concerning
what was said at the December 7 meeting . Nurses aides
Frankie Wells (who was the shop steward) and Willie
Minnifield , as well as supervisor Rose Triplett , testified on
behalf of the General Counsel . Orderly William Biggs
testified on behalf of Respondent . All five of the witnesses
corroborated parts of each other's testimony and disagreed
as to other parts . The pivotal differences are.keyed to the
matters alleged in paragraphs 12(b), (c), and (d) of the
complaint.
Paragraph 12(b) of the complaint alleges that Ames told
the employees that Respondent could offer the employees
better ' benefits than the Union could . As noted above,
Ames testified that her remark concerning benefits
occurred during the time she was reading the speech
prepared by her attorney and that she said "Obviously, we
will continue the wages and benefits which you now have."
Biggs corroborated her testimony in this regard . Triplett
testified that Ames did not say that Respondent could give
the people better benefits than the Union . Minnifield in
her initial testimony averred that Ames said that Leipzig
would give them more benefits . However, on cross-exami-
nation Minnifield acknowledged that she could not
remember if Ames said they would continue the benefits
that they then had . Wells testified that Ames said that
Raymond Convalescent Hospital could give them better
benefits than the Union ." Wells' testimony in this regard
is inconsistent with the witnesses of both Respondent and
the General Counsel. I do not believe that Wells was
accurate in her recollection of what happened at the
meeting and I do not credit her assertion that Ames
promised better benefits than the Union . I shall, therefore,
recommend that paragraph 12(b) of the complaint be
dismissed.
Paragraph 12(c) of the complaint alleges that Ames told
the employees that they could come into her office to
inform her if they did not want the Union . As is set forth
above, Ames acknowledged that she told the employees
that they could let Leipzig or Ames know at a later time
what they felt about it. However , she put the remark in the
context of employee Margo's suggestion that the employ-
ees vote on the Union and the employees started to put up
their hands . She averred that she said "Just wait a minute.
We couldn't vote it in or out at this time as I understand it.
I don 't want you to make a hasty decision, please, think
about it and you can let Mr. Leipzig or I know at a later
time what you really feel about it." Biggs corroborated
I I Before so testifying , Wells was asked whether she recalled Ames ' us that she couldn 't tell us how to vote." Her response with regard to the
saying anything else about the Union and Ames replied , "No. Shejust told benefits was then elicited by use of a leading question.
RAYMOND CONVALESCENT HOSPITAL, INC. 497
Ames in substantial part by testifying that, after employee
Margo spoke , Ames said that she didn 't want a hasty
decision and the employees could think it over in the next
day or so and come to her office or let her know whether
they wanted the Union. Minnifield testified that Ames said
that they could each come to her office to talk to her about
the Union and whether they wanted it. Triplett testified
that no one talked about a vote or a hasty decision. She
also testified in substance that Ames told the employees
that it was up to them whether they wanted to vote for or
against the Union and that they could come to her office if
they wanted to pursue the matter any further. Wells
testified that Ames said that she couldn 't tell them how to
vote but, if they wanted to, they could come to her office
one at a time because her door was open to discuss if they
wanted the Union or not. I believe that Ames was both a
truthful and an accurate witness . Her testimony concern-
ing what she said at the meeting was more detailed than
that of the other witnesses and was fully credible . I do not
believe that the recollection of the other witnesses was as
accurate . In sum , I find that Ames was attempting to get
the employees to refrain from conducting a poll of their
union sentiment that might be considered unlawful, and
was not soliciting them to come to her office and renounce
the Union . In the context in which the statements were
made , I find that Ames' remark did not violate the Act, I
shall therefore recommend that paragraph 12(c) of the
complaint be dismissed.
Paragraph 12(d) of the complaint alleges that Ames told
the employees that licensed vocational nurses would quit if
the Union were designated as collective-bargaining repre-
sentative . Ames testified that she never said anything about
LVN's quitting if the Union came in and that LVN Reser
was the one who said that she (Reser) would quit if they
had to "fool with that Union." Biggs in his testimony
corroborated Ames' testimony to the effect that Ames did
not say anything with respect to LVN 's quitting . Minni-
field testified as to the details of what was said at the
meeting but she did not give any testimony concerning
whether or not Ames made a statement concerning LVN's.
Triplett testified that she did not hear anyone make a
statement that the LVN's would quit if the Union got in. In
contrast to all the other witnesses , Wells testified that
Ames told the employees that she had received a letter
indicating the LVN's would quit if the Union got in. Wells
also averred that LVN Reser did not threaten to quit if the
Union came in. Ames' testimony is fully or partially
corroborated by the testimony of the other witnesses while
the testimony of Wells stands out in isolation. As indicated
above, I believe that Ames was a more accurate witness
than Wells and I credit Ames where her testimony conflicts
with Wells'. I shall therefore recommend that paragraph
12(d) of the complaint be dismissed.
C. The Refusal To Bargain
1. The employee comments to Ames concerning
union representation
Myra Burman, the administrator for Park Raymond
from October 22, 1973, through November 17, 1973,
credibly testified that during the time she was administra-
tor there were no problems concerning the Union.
However, Mildred Ames, the administrator who preceded
Burman as Administrator for Park Raymond and who
took over when Respondent began to operate the nursing
home on November 19, 1973, credibly testified that from
the first day she began working for Respondent employees
told her that they did not want to be represented by the
Union.
Respondent commenced its operations of the nursing
home on November 19 with 38 employees, all of whom had
immediately before been employed by Park Raymond in
the bargaining unit represented by the Union. In the first 2
days of Respondent's operation, some 10 employees
approached Ames and told her that they did not want the
Union. Within the first 2 weeks of Respondent's operation
(which began November 19, 1973), at least 23 of those 38
employees told Ames that they did not want the Union.12
Respondent's records show that as of December 1, 1973,
there were five additional employees. Two of the five 13 had
previously worked for Park Raymond while the others had
not. Of these five, one,14 shortly after her hire, told Ames
that she did not want the Union. Respondent's records also
show that there were four more employees as of December
7, 1973. None of these had previously worked for Park
Raymond. One,15 shortly after her hire, told Ames that she
did not want the Union.
Summing up the above figures , it appears that of the 38
employees who started off with Respondent on November
19, 1973, at least 23, during the first 2 weeks of their
employment, told Ames that they did not want the Union.
In some circumstances it is proper to assume that new
employees who are hired want union representation in the
same proportion as the other employees.16 However, in the
instant case, even if it is assumed that all of the new
12 Biggs testified that the first time he told Ames that he did not want the
Union was at the December 7 meeting. Ames averred that Biggs told her
this on two or three occasions shortly after November 19, 1 credit the
accuracy of Ames ' recollection over that of Biggs. The finding with regard
to the other 22 are based on the credible and uncontradicted testimony of
Ames . Those employees were 1. Brakens , T. Brown, T. Calantas, M Clark,
R. Cobos, J. Cooper, E. Frazier , E Harrison , B. Haupt , T. Jeffery, B.
Johnson , S. Jones , M. Margo, M. McIntire , V. Miller, J. Norzagoray, D.
Oliver, E. Reser, F. Smith , L. Thompson, M. Toler, and M . Welch. Three
employees , as to whom there was some question , have not been included in
the 23. Those are B. Jones , C. Price, and O . Rasberry. B. Jones is a part-time
LVN charge nurse . She testified that she was not interested in the Union but
that she did not tell Ames anything about the Union. Ames testified that
Jones was one of the employees who told her she didn 't want the Union
Both Jones and Ames were fully credible witnesses but I believe that it is
more likely that Jones' recollection would have been more accurate as the
event would have been easy for her to remember and Ames could have been
mistaken in going over a long list of names . I therefore credit Jones and
have not counted her among the employees who told Ames that they did not •i
want the Union . Ames testified that employee C. Price told her that he did
not want the Union and then later told her that he hadn't made up his mind.
Ames also testified that employee O. Rasberry told her indirectly that she
didn't want the Union and then retracted that statement . I have therefore
not counted either Price or Rasberry among the employees who told Ames
that they did not want the Union.
13 D. Lara and M. Curran.
14 M. Curran.
Is I Rogers.
16 Cf. Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement
denied 359 F.2d 799 (C.A 7, 1966); Emerson Manufacturing, inc., 200
NLRB 148 (1972).
499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees wanted the Umon except those who specifically
told Ames they did not, it appears that 25 employees out of
a total complement of 47 told Respondent 17 that they did
not want the Union.
2. The checkoffs and union memberships
Ames credibly testified that she knew that only a small
portion of the employees were on checkoff for the Union.
Booker Graham, a business representative for the Union,
testified concerning union records. He acknowledged that
in the division of the Union in question it was the practice
to have all union members on checkoff. Though Graham's
analysis of the union records was at best confusing, he did
admit that the Union only had ] I membership cards for
the 38 employees listed on Respondent's records as being
employed as of November 19, 1973. He also admitted that
the Union had only 18 checkoffs for November.
3. Analysis and conclusions
a. The background principles
The Board has consistently held that where an employ-
ing industry remains the same, a predecessor's obligation
to deal with the Union that represents its employees
devolves on a successor. Maintenance, Incorporated, 148
NLRB 1299, 1301 (1964); N.L.R.B. v. Burns International
Detective Agency, Inc., 406 U.S. 272 (1972). This principle
applies where the Union's majority status with regard to
the predecessor is established by the presumption raised
either by a certification or by the existence by an unexpired
collective-bargaining agreement. Roosevelt Walker d/¢/a B
& W Maintenance Service, 203 NLRB 657 (1973); Barring-
ton Plaza and Tragniew, Inc., 185 NLRB 962 (1970), enfd.
470 F.2d 669 (C.A. 9, 1972).
The facts set forth above establish that Respondent is a
successor employer to Park Raymond in that it used
"substantially the same facilities and work force to produce
the same basic products for essentially the same customers
in the same geographic area." Ranch-Way, Inc., 203 NLRB
911 (1973).18
As the Board said in Automated Business Systems, 205
NLRB 532 (1973):19
Under established Board precedent, there is a presump-
tion that a union, after the expiration of a year from the
date of its certification, continued to be the choice of
the employees in the unit as their exclusive bargaining
representative. Similarly, it is presumed that a union
retained its majority status in the unit established by its
it It is noted that the date of employment off. Rogers was later than the
others . General Counsel in his beef points to the fact that Ames, in an
affidavit she gave to the General Counsel , averred that at the time she
advised the employees that Respondent had received a request from the
Union to sign a contract 13 employees told her they didn't want the Union
and a number of others told her that thereafter . General Counsel argues that
this indicates that the employees spoke to Ames on December 7 when she
addressed them or thereafter and not as claimed by Ames within 2 weeks of
November 19. The affidavit's reference to Ames telling the employees about
the demand does not necessarily indicate that the remark was made at the
formal meeting of December 7 It is likely that the demand was generally
discussed shortly after it was received . The affidavit refers to the
conversations with employees and then goes on to state that on December 6
collective-bargaining agreement , even after the expira-
tion of that agreement . This presumption is normally
rebuttable (subject to the Board's "contract-bar"
doctrine) by competent evidence that the union no
longer commands a majority, and even without such an
affirmative showing an employer may withhold further
bargaining in reliance upon a reasonably based doubt
as to the continuing majority. [Footnotes omitted.]
In Barrington Plaza and Tragniew, Inc., supra, the Board
held: "The presumption applies not only to a situation
where the employer charged with a refusal to bargain is
itself a party to the preexisting contract, but also to a
successorship situation . . . . The burden of rebutting this
presumption rests , of course, on the party who would do
so."
Ordinarily, an employer may not question an incumbent
union 's majority status during the life of a contract. That
risk, however, does not apply to successors because, under
the principles established by the Supreme Court in the
Burns case , supra, a successor-employer is not bound by its
predecessor's collective-bargaining contract in the absence
of an undertaking to that effect. Ranch-Way, Inc., supra.
Respondent therefore stands in a similar position to a
nonsuccessor employer at the end of a collective-bargain-
ing contract. Respondent can rebut the presumption of
continued majority either through proof that it predicated
its refusal to bargain on a reasonably based doubt as to the
continuing majority status of the Union or that the Union
in fact no longer represented a majority of the unit
employees. Cf. Orion Corp., 210 NLRB 633 (1974).
b. The lack of union membership and checkoff
As is set forth above, Respondent has established
through the testimony of Union Business Agent Booker
that as of November 19, 1973, only a minority of its
employees were members of or had checkoffs in favor of
the Union. Respondent began operations with almost all of
Park Raymond's employees, and on November 19, a
representative employee complement had been hired.
However, the Board has pointed out that majority support
is not to be confused with majority union membership. The
fact that a majority of employees are not members of a
Union and do not pay dues is not equivalent to a lack of
union support. Orion Corp., supra. As the Fourth Circuit
Court of Appeals held in Terrell Machine Company v.
N.L.R.B., 427 F.2d 1088 (1970): ". . . many employees are
content neither to join the union nor to give it financial
support but to enjoy the benefits of its representation.
Nonetheless, the union may enjoy their support, and they
(the day before the formal meeting ) Ames called Respondent's attorney and
told him that many of the employees had informed her that they did not
want the Union . In any event, 2 weeks after November 19 was December 3,
1973. General Counsel 's argument is that the refusal to bargain occurred on
December 1, 1973, when Respondent received the Union's demand
Respondent has not proved that a majority of employees told Ames they did
not want the Union as of that date.
18 Respondent, in effect, acknowledges its successorship status by stating
in its brief: "In a successorship case such as this, 'resolution of the allegation
that Respondent refused to bargain collectively with the Union [is] a
question of fact requiring a determination whether Respondent entertained
a good faith doubt of the Union 's majority status.' " [Citations omitted.]
19 See also Canter Bros., Inc., 203 NLRB 774 (1973).
RAYMOND CONVALESCENT HOSPITAL, INC. 499
may desire continued representation by it." Therefore, the
evidence with regard to membership and checkoff fails to
establish that the Union did not continue to represent a
majority of the employees.
c. The good faith doubt
Respondent has introduced substantial evidence with
regard to its claim that its refusal to bargain was predicated
on a good-faith and reasonably grounded doubt of the
Union's continued majority. As the Board held in Terrell
Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d
1088 (C.A. 4, 1970), there are two prerequisites for
sustaining this defense. They 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." (Footnotes omitted.) In
Phil-Modes, Inc., 159 NLRB 944, 959 (1966), enfd. 396
F.2d 131 (C.A. 5, 1968), the Board adopted the Adminis-
trative Law Judge's finding that: "And ordinarily evidence
that employees reported or communicated to supervisors
that they, the enployees, wished to withdraw from the
Union, absent any contemporaneous unfair labor prac-
tices , warrants a finding of good-faith doubt as to
majority." (Footnotes omitted.)
As is set forth in detail above, some 10 employees
notified Respondent within the first day or two of its
operation that they no longer wanted the Union to
represent them, and within 2 weeks of the commencement
of operations a majority of the employees had so informed
Respondent. That 2-week period ended December 3, 1973.
The Union's demand for recognition was received by
Respondent on December 1, and on December 7, 1973,
Respondent filed a petition for an election. As is set forth
above, Respondent simply refrained from all action with
regard to the Union prior to filing the petition for an
election . The allegations of independent violations of
Section 8(a)(1) of the Act have not been established by a
preponderance of the evidence and there is no allegation
nor proof that Respondent changed any wages, hours, or
working conditions.
In determining whether Respondent had a good-faith
doubt as to the Union's majority, the remarks that Ames
made to Burman (the administrator of Park Raymond
from October 3 to November 18, 1973) must be considered.
In the conversation which took place about ' November 14
or 15, 1973, which was 4 or 5 days before Respondent
commenced operations, Ames referred to her anticipated
employment with Respondent and said "I will have
nothing to do with the Union," or "I will kick the Union
out as soon as I get back to Park Raymond." To some
extent , this stated desire to be shed of the union colors
Respondent's assertion that it had a good-faith doubt as to
the Union's majority. There is no evidence in the record
concerning Ames' prior relationship with the Union when
she was administrator for Park Raymond or whether Ames
19 As indicated above , Ames credibly testified that the employees told
her they did not want the Union during the first 2 weeks of Respondent's
operation of the nursing home . The 2-week period ended December 3, 1973.
As Respondent has the burden of going forward with the evidence to rebut
the presumption of continued majority, its failure to establish its good-faith
doubt as of December 1, 1973, leaves the presumption intact as of that date.
had any reason to doubt the Union's majority status with
regard to Park Raymond. Ames' remarks therefore give
cause to view Respondent's defense with some skepticism.
However, the remarks in themselves do not conclusively
establish a lack of good faith with regard to Respondent's
subsequent actions. The fact that Ames wanted to operate
nonunion does not establish that at the time of the refusal
to bargain with the Union Respondent did not have a
good-faith doubt that the Union represented a majority of
the employees. As found above, by December 7, 1973,
when Respondent filed a petition for an election, a
majonty of the employees in the bargaining unit had told
Ames they didn't want the Union. Respondent had not
engaged in any independent violation of Section 8(a)(1) of
the Act which would have indicated that the employees
were being coerced into expressing something other than
their true desires. I therefore find that as of December 7,
1973, when it filed the petition for an election, Respondent
did have a reasonably based good-faith doubt as to the
Union's majority status and that doubt was based on
objective considerations. I also find, however, that Re-
spondent has not proved that as of December 1, 1973,
when it received the Union's demand for recognition, that
it had such a good-faith doubt.19 Respondent has proved
that some of the employees had indicated they did not
want the Union by December 1 but has not proved that a
majority had done so. The date upon which Respondent's
obligation to bargain matured must therefore be consid-
ered.
A successor employer is something of a hybrid creature.
It does not have all the attributes of its predecessor, in
whose shoes it partly stands, in that it is not bound by the
predecessor's contract and it can raise a question concern-
ing its good-faith doubt as to the Union's majority status at
a time when the predecessor would have been barred from
making such a claim because of an outstanding contract.
In addition, a successor cannot withdraw recognition as
can a predecessor, because a successor has never granted it
in the first place. On the other hand, a successor is very
unlike an employer who approaches a bargaining relation-
ship for the first time, as the successor is bound by a
presumption of continued majority from his predecessors
relationship with the Union, In general, categorical
analogies cannot always be properly drawn between the
duties that a predecessor would have had and those that a
successor does in fact have.
An employer (where there is no successorship) can
withhold further bargaining, after expiration of its con-
tract, as of the date that it obtains a reasonably based
doubt as to the Union's continuing majority. Automated
Business Systems, supra. The date of the withholding of
further bargaining or the withdrawal of recognition is
decisive in determining whether there had been good
faith.20 In the instant case , Respondent had hired a
representative employee complement as of the moment it
started operations. It had continued the predecessor's
20 In Orion Corporation, supra, the Board referred to: ". . . the well-
established principle that if an employer does not establish that it had a
reasonable doubt when it ceased bargaining, it can defend against an 8(aX5)
allegation only by showing actual loss of majority as of the date of
withdrawal of recognition " (Footnote omitted.)
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business with almost all of the predecessor 's employees and
had done so without interruption . Because it was a
successor , Respondent had never bargained with or
granted recognition to the Union and therefore did not
cease bargaining or withdraw recognition . It did, however,
refuse to bargain . It manifested its refusal by the filing of
the RM petition on December 7, and by the statement of
Ames to Union Business Agent Booker on December 10,
that , as far as Ames was concerned , the place was not
union.
As a general rule, a successor's obligation to bargain with
a union matures when the successor has hired a representa-
tive employee complement , a majority of whom had been
represented by the Union. Valley Nitrogen Producers, Inc.,
207 NLRB 208 (1973); N. L R. B. v. Burns, etc, supra at 295.
That rule presupposes that a demand for recognition and
bargaining has been made by the Union. No union
demand is needed in a situation where there is a
withdrawal of recognition or a cessation of bargaining by
an employer . However , where an employer has not
recognized the Union it can be found to have unlawfully
refused to bargain only after the Union has demanded
bargaining. Cf. Spruce Up Corporation, 209 NLRB 194
(1974). The General Counsel therefore contends in his brief
that the duty to bargain arose not on November 19 when
Respondent had hired a representative employee comple-
ment but on December 1, 1973, when Respondent received
the Union's demand . The date that a demand is received is
ordinarily used as the refusal to bargain date in situations
where an employer responds to the demand by engaging in
unfair labor practices that are of such a nature as to
prevent the possibility of a fair election . However, that is
not the situation in the instant case . Here Respondent did
not engage in any activities to undermine the Union. In the
6 days between the receipt of the demand and the filing by
Respondent of the petition for an election , Respondent
took no action with regard to the Union . Neither did it do
anything to -change wages, hours, or conditions of
employment. The first action of Respondent that could be
construed as a refusal to bargain was the filing of the
petition of December 7, 1973. In the circumstances of this
case, I see no compelling policy reason to require the legal
conclusion that Respondent refused to bargain on the date
the demand was received rather than on the date on which
the Company responded to the demand . The demand was
received in the context of a situation where there was
ferment concerning the Union, and a number of the
employees , though less than a majority , had told Respond-
ent they did not want the Union . Respondent maintained
the status quo for 6 days and did not use that time to
attempt to undermine the Union or to unreasonably delay
a response to the Union's demand . On the sixth day after
the demand , and after a majority of the employees had
indicated they did not want the Union , Respondent filed
the RM petition and thereby indicated that it would not
bargain with the Union unless the employees voted in a
Board election in favor of the Union. Under these
particular circumstances , I do not believe a fording that the
Respondent violated Section 8(a)(5) of the Act is warrant-
ed. In cases of this nature , two basic policy considerations
must be weighed . The first is that the industrial stability
that flows from the continuation of a collective-bargaining
relationship, whether established through a history of
bargaining or a successorship, should not be disturbed or
subjected to question except for good cause. The second is
that an employer's statutory obligation to bargain only with
a majority union as well as the employees' right to affirm
or deny their desire to be represented by an incumbent
union, are meaningful only where the employees, at
appropriate times, can make a definitive statement of their
views . In this case such a statement was sought through the
Board's election procedure . In the circumstances of this
case, I believe that a proper balancing of these policies
weighs in favor of the election procedure.
In reaching this conclusion , I have carefully considered
the cases of Ranch- Way Inc., supra Valley Nitrogen
Producers, Inc., supra, and Glenn Spooner d/b/a D & F
Super Market, 208 NLRB 891 (1974). A serious argument
can be made on the basis of those cases that a successor's
duty to bargain matures at the time when the demand has
been made and a representative employee complement
hired, and that evidence of good-faith doubt after those
dates cannot be used to exonerate an employer from an
8(a)(5) violation . However, I believe that all three cases are
distinguishable on their facts . In Ranch-Way, Inc., the
Board found that a successor-employer who had taken
over operations from a predecessor on July 1, 1968,
violated Section 8(a)(5) of the Act by making certain
unilateral changes in working conditions on and after July
1, 1968, and by refusing to bargain with the union on July
15, 1968, when the union notified the company that it
expected the contract to remain in effect. In that case, the
Board found that it was not until October or November
1968, which was long after the company's refusal to
bargain, that the employees indicated that they no longer
wished to be represented by the union. On August 5, 1968,
that employer had expressed doubt of the Union's majority
but gave no reason to support that expression . In those
circumstances, the Board found that the employer had
violated Section 8(aX5) of the Act. In Valley Nitrogen
Producers, Inc., the Board specifically keyed an 8(a)(5)
violation to its finding: "that at the time the duty to
bargain with the Union matured the Respondent did not
have a sufficient basis to doubt the Union's majority status
among the unit employees." The Board found that the duty
matured on January 26, 1973, when a representative
complement of employees had been hired (which was after
a demand by the union had been made ). The successor had
taken over the operation of the predecessor on January 11,
1973. The Board held that evidence of employee dissatis-
faction with the union after January 26, 1973, was vitiated
by the company's preexisting unlawful refusal to bargain
with the union and therefore was to be accorded no weight
whatsoever . However, the underlying facts of that case
were that between January 10 and 26, 1973, the company
instituted an entirely different schedule of wages, rates of
pay and hours, and changed working conditions. On
January 9, 1973, the union had demanded bargaining. The
company ignored the demand and told the employees to
contact the former employer concerning any contract
rights. On January 19, the union reiterated its demand on
the telephone, and the company answered that it was not
RAYMOND CONVALESCENT HOSPITAL, INC. 501
fully staffed but that it had no objection to meeting when
staffing was completed . On January 23, the union wrote
making a third demand . On February 2, the company
responded by saying that it would meet when employment
conditions were resolved , but would not recognize the
union . On February 7, the employer claimed that the union
did not represent a majority . On February 16, the union
again renewed its demand and, on February 22, the
company agreed to investigate the union 's majority status.
In both the Ranch - Way, Inc., and Valley Nitrogen cases, the
employer engaged in prolonged alld unjustifiable dilatory
tactics while changing wages, hours, or working conditions.
Both are distinguishable from the instant case where
Respondent maintained the status quo for a short time
before filing a representation petition , which was based on
a good-faith doubt as to majority , and the delay was in the
context of substantial employee claims that they did not
want the Union to represent them.
Glenn Spooner d/b/a D & F Super Market, supra, is also
distinguishable on its facts from the instant case. In the
Spooner case, the successor began operating on August 14,
1972. The company met the union who represented the
predecessor's employees, and on August 17, 1972, the
union demanded recognition . The company responded by
demanding proof of the majority. The Board found this
demand for proof to be a refusal to bargain and also found
that, as of the date of that refusal, the employer did not
have a good-faith doubt as to the union 's majority status.
In that context an 8(aX5) violation was found even though
21 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
an RD petition had been filed on September 6, 1972. In the
instant case , the only demand for proof of majority by the
Employer was made through the filing of an RM petition
and at the time of the filing the Employer did have a good-
faith doubt as to the Union's majority. No other action of
the Respondent took place before the filing of the petition
that can be construed as a refusal to bargain.
In sum , I find that , based on the particular circumstances
set forth above, the General Counsel has not proved by a
preponderance of the credible evidence that Respondent
refused to bargain in violation of Section 8(a)(5) of the Act.
I shall therefore recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. 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. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 21
The complaint is dismissed in its entirety.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.