Riviera Manor Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Sep 5, 1975

220 N.L.R.B. 124 (N.L.R.B. 1975)

124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riviera Manor Nursing Home , Inc. and Local 4, Ser-
vice Employees International Union, AFL-CIO'
and Hotel-Motel Service Workers, Drug Stores,
Sports Events, Industrial Catering, and Nursing
Home Employees Union , Local No. 593, AFL-
CIO,2 Party to the Contract . Case 13-CA-13044
September 5, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On March 31, 1975, Administrative Law Judge
Bernard Ries issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief; the Charging Party filed ex-
ceptions and a supporting brief, and a brief in answer
to Respondent's exceptions; and the General Coun-
sel filed a brief in reply to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 and to adopt his rec-
ommended Order as modified herein.
The facts are fully set forth in the Administrative
Law Judge's Decision. In summary, the relevant
facts are as follows: On January 9, 1969, Council 19
filed a petition in Case 13-RC-11744 in which it
sought to represent certain employees of Respondent
herein. Thereafter, Local 4 intervened in that pro-
ceeding and, pursuant to an agreement upon consent
election entered into by the parties, an election was
held on March 20, 1969.3 Following the election,
Council 19 filed objections to conduct affecting the
results of the election and simultaneously filed unfair
labor practice charges alleging that Respondent had
violated Section 8(a)(5), (3), and (1) of the Act. Upon
the issuance of a complaint in Case 13-CA-8979
based on these charges, the Regional Director or-
dered the consolidation of the representation case
and the unfair labor practice case for purposes of
hearing before a Trial Examiner.4
i Herein referred to as Local 4.
2 Herein referred to as Local 593. Council 19, American Federation of
State , County, and Municipal Employees , AFL-CIO, herein referred to as
Council 19 , was named as a party in interest.
3 The tally of ballots showed 13 votes for, and 17 against , Council 19, and
2 challenged ballots. No votes were cast for Local 4.
4 The title of "Trial Examiner " was changed to "Administrative Law
On April 23, 1970, the Trial Examiner issued his
decision in which he found that Respondent had
committed the unfair labor practices as alleged and,
inter alia, recommended that Respondent be required
to bargain with Council 19. With respect to Case 13-
RC-11744, he recommended that Council 19's objec-
tions be sustained, that the election be set aside, and
that, in view of the bargaining order, the petition be
dismissed. In accordance with Board procedure, the
Trial Examiner further severed the representation
case from that proceeding and remanded it to the
Regional Director.
Thereafter, on July 29, 1970, despite then pending
exceptions before the Board to the Trial Examiner's
decision with respect to the unfair labor practice
case, the Regional Director issued a supplemental
decision and direction of second election in which he
directed that a second election be conducted "at such
time as he deems appropriate." On November 25,
1970, the Board adopted, with modifications not here
relevant, the Trial Examiner's decision, including his
recommendation that a bargaining order issue.'
Thereafter, and continuing to date, the Regional Di-
rector has taken no action with respect to Council
19's petition or his direction of second election.
Subsequently, the Board sought enforcement of its
order before the Court of Appeals for the Seventh
Circuit. Following a remand by the court for a fur-
ther Board determination with respect to, the alleged
violation of Section 8(a)(5), the Board reaffirmed its
prior decision.' On November 16, 1973, the court en-
forced the Board's order with respect to the viola-
tions of Section 8(a)(3) and (1), but denied enforce-
ment of the Board's bargaining order. Approximately
2 weeks later, Local 593 sought recognition and Re-
spondent extended recognition to it after a check of
authorization cards conducted by an impartial party.
In the instant proceeding, the Administrative Law
Judge found that Respondent recognized Local 593
at a time when there existed a pending petition and
an outstanding direction of second election, and in
circumstances in which Respondent should have
been, and in fact was, aware of rival claims by both
Council 19 and Local 4' for the representation of its
employees. He therefore applied the Board's Midwest
Piping doctrine 8 and found that Respondent had
violated Section 8(a)(2) and (1) of the Act. While we
agree with the Administrative Law Judge's conclu-
sion, we do not adopt his rationale.
Thus, contrary to the Administrative Law Judge,
we find that the Regional Director's direction of sec-
Judge" effective August 19, 1972.
5 186 NLRB 806 (1970).
6200 NLRB 333 (1972).
r See in. 12, infra
8 Midwest Piping and Supply Co., Inc, 63 NLRB 1060 (1945).
220 NLRB No. 23
RIVIERA MANOR NURSING HOME 125
and election in Case 13-RC-11744 was not in con-
formity with Board policy and, therefore, we place
no reliance on the pendency of that direction in find-
ing a violation herein. In this regard, it is the Board's
established policy to dismiss pending representation
petitions upon the issuance of a bargaining order.
Underlying this policy is the principle that a petition,
which presupposes the presence of a question con-
cerning representation, and a bargaining order,
which necessarily rests on the absence of a question
concerning representation, are inherently inconsis-
tent and, therefore, may not concurrently exist .9 The
Administrative Law Judge, in finding that the pend-
ing petition and outstanding direction of second elec-
tion remained "viable," relied on cases which, in fact,
are in accord with the Board's established policy.
Thus, in each of the cases cited by the Administrative
Law Judge the Board, upon issuing a bargaining or-
der, dismissed the pending petition. While the Board
in these cases subsequently reinstated the previously
dismissed petitions, it did so only after vacating the
bargaining orders. No reason exists why a departure
from this policy is warranted here notwithstanding
the Regional Director's failure to dismiss the pending
petition in Case 13-RC-11744.
We conclude, however, that Respondent's recogni-
tion of Local 593 was unlawful. As noted above, Re-
spondent extended recognition to Local 593 a mere 2
weeks after the court's denial of enforcement to the
Board's bargaining order issued in favor of Council
19. For the previous 4-1/2 years Respondent had
been engaged in continuous litigation over the issue
of Council 19's claimed majority status and the valid-
ity of the Board's bargaining order based on its find-
ing that Council 19 had in fact achieved majority
status among Respondent's employees. The Board's
issuance of the bargaining order and its subsequent
efforts to enforce that order created a presumption of
majority status on behalf of Council 19 and consti-
tuted a continuing demand by that Union for recog-
nition by Respondent.10 While concededly that pre-
sumption of majority status did not survive the
court's final decision, the Board's considerable ef-
forts on behalf of Council 19 to enforce the bargain-
ing order, as well as the existence of the then as yet
unremedied violations of Section 8(a)(3) and (1)
based on charges filed by Council 19, clearly put Re-
spondent on notice that Council 19 itself maintained,
if not majority status, at least a continuing and sub-
'International Hod Carriers Building and Common Laborers Union of
America, Local 840, AFL-CIO (Charles A. Blinn, d/b/a C A Blmne Con-
struction Company), 135 NLRB 1153, 1166 at In 24 (1962).
'° Cf. Franks Bros. Company v N. L R B, 321 U S. 702 (1944), Quaker
Tool & Die, Inc., 162 NLRB 1307, 1308 (1967), Cumberland Shoe Corpora-
tion, 156 NLRB 1130. 1134 (1966).
stantial interest in representing its employees. Yet,
despite these clear indications of Council 19's contin-
ued interest, Respondent, almost immediately after
the court's decision, chose to recognize a rival union
without so much as attempting to contact Council 19
to inquire whether it had abandoned its interest.
We find that, in the circumstances here, it was in-
cumbent upon Respondent, at the very least, to have
made an inquiry of Council 19 as to its interest be-
fore extending recognition to another union." We
further conclude that, by ignoring Council 19's mani-
fest claim to represent its employees and by recogniz-
ing Local 593, Respondent failed to observe its obli-
gation to observe strict neutrality under Midwest
Piping and thereby violated Section 8(a)(2) and (1) of
the Act. Accordingly, we shall adopt the recom-
mended Order of the Administrative Law Judge, as
modified herein.12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Riviera
Manor Nursing Home, Inc., Chicago, Illinois, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Withdraw and withhold all recognition from
Local No. 593 as a representative of its employees for
the purpose of collective bargaining unless and until
said labor organization has been fully certified by the
National Labor Relations Board as the exclusive rep-
11 We, however, do not conclude that Respondent had or should have had
reason to believe that Local 4 had a continuing claim to represent its em-
ployees or that therefore it was also obligated to contact Local 4 prior to
extending recognition to Local 593 In this regard, we note that Local 4
received no votes in the March 1969 election, filed no objections to that
election, and did not except to its exclusion from the ballot in the Regional
Director's direction of second election Furthermore, although Local 4 filed
a representation petition in mid-1972 seeking to represent Respondent's em-
ployees, it subsequently withdrew that petition without further communica-
tion with Respondent. Finally, in September 1973, Local 4 wrote the Re-
gional Director inquiring as to the status of the proceedings before the court
and indicating its continuing interest in representing Respondent's employ-
ees. However, Respondent was not served with a copy of that letter and
there is no other basis in the record for concluding that Respondent was, or
should have been, aware of Local 4's asserted claim at any time after with-
drawal of its petition.
12 In view of our finding that the Regional Director's failure to vacate his
direction of second election and to dismiss the petition in Case 13-RC-
11744 was not in accord with Board policy, and inasmuch as the filing of a
new petition will afford Local 593 or any other interested labor organization
the opportunity to appear on the ballot in any election to be conducted
among Respondent's employees herein involved, we conclude that the certi-
fication of any labor organization as collective-bargaining representative of
these employees should properly be based on a new petition, if one be filed
hereafter. We therefore shall modify the recommended Order of the Admin-
istrative Law Judge to indicate this
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative of such employees in a proceeding upon a
new petition, if any be filed hereafter."
2. Substitute the attached notice for that of the
Administrative Law Judge.
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 having found,
after a trial, that we violated Federal law by granting
recognition to Hotel-Motel Service Workers, Drug
Stores, Sports Events, Industrial Catering, and Nurs-
ing Home Employees Union, Local No. 593, AFL-
CIO, at a time when a question concerning represen-
tation existed, we hereby notify you that:
WE WILL NOT assist or contribute support to
Local No. 593, or any other labor organization,
by recognizing, or contracting with, such labor
organization as the exclusive representative of
our employees for the purpose of collective bar-
gaining at a time when there exists a question
concerning representation.
WE WILL NOT give effect to our January 1,
1974, bargaining agreement with Local No. 593,
or to any renewal, extension, modification, or
supplement thereof, unless and until said labor
organization has been duly certified by the Na-
tional Labor Relations Board as the exclusive
representative of our employees, but nothing
herein shall be construed to require that we vary
or abandon any existing term or condition of
employment.
WE WILL withdraw and withhold all recogni-
tion from Local No. 593 as the collective bar-
gaining representative of our employees unless
and until said labor organization has been certi-
fied as such by the National Labor Relations
Board upon a new petition, if any, be filed here-
after.
WE WILL reimburse all present and former em-
ployees (except those who joined Local No. 593
before we signed the bargaining agreement) for
any initiation fees, dues, or other moneys paid
or checked off pursuant to our agreement with
Local No. 593, with interest at 6 percent a year.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7
of the Act.
RIvIERA MANOR NURSING HOME, INC.
DECISION
STATEMENT OF THE CASE
BERNARD RIES,I Administrative Law Judge: This case
was heard in Chicago, Illinois, on December 18, 1974,2 pur-
suant to a charge filed on February 27, 1974, and a com-
plaint issued on August 7, 1974.
The complaint alleges that Respondent violated Section
8(a)(1) and (2) of the National Labor Relations Act when,
on or about December 4, 1973, it extended recognition to
Hotel-Motel Service Workers, Drug Stores, Sports Events,
Industrial Catering, and Nursing Home Employees Union,
Local No. 593, AFL-CIO, as the exclusive collective-bar-
gaining representative of certain of Respondent's employ-
ees. In its answer, Respondent denies the critical allega-
tions of the complaint.
Upon the entire record, and after due consideration of
the briefs filed on or about February 3, 1975, by the Gener-
al Counsel and the Respondent, I hereby make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINEES OF THE RESPONDENT
Respondent is an Illinois corporation which, at all times
material, has maintained a proprietary nursing home in
Chicago Heights, Illinois. During the year preceding is-
suance of the complaint, Respondent received gross reve-
nues in excess of $200,000, and purchased and received
drugs and supplies, valued in excess of $10,000, at its place
of businees in Chicago Heights, Illinois, which supplies
were transported to its place of business directly from
points located outside the State of Illinois.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits , and I find , that Local 4, Service
Employees International Union, AFL-CIO (hereinafter re-
ferred to as Local 4), Council 19, American Federation of
State , County, and Municipal Employees , AFL-CIO (here-
inafter referred to as Council 19), and Hotel-Motel Service
Workers , Drug Stores , Sports Events , Industrial Catering,
and Nursing Home Employees Union , Local No. 593,
AFL-CIO (hereinafter referred to as Local 593), are, and
have been at all times material , labor organizations within
the meaning of Section 2(5) of the Act,
1 The transcript to the contrary notwithstanding, my name is spelled as
indicated herein.
2 The hearing was recessed, rather than closed, on December 18, on the
General Counsel's representation that he might produce one rebuttal wit-
ness the following day. The General Counsel informed the parties on the
evening of December 18 that he did not intend to do so. The hearing was
formally closed by my order closing hearing and setting time for filing
briefs, issued on December 30, 1974.
RIVIERA MANOR NURSING HOME 127
III. THE UNFAIR LABOR PRACTICES
A. Chronology of Events
The General Counsel alleges that Respondent rendered
unlawful assistance to Local 593 when it extended recogni-
tion to that labor organization in December 1973 in cir-
cumstances which, General Counsel asserts , gave rise to a
real question of representation . I shall deal separately with
the two alleged sources of a real question of representation.
1. The pendency of the petition for election in Case
13-RC-11744
On January 9, 1969 , Council 19 filed a petition for elec-
tion in Case 13-RC-11744. Thereafter, Local 4 intervened
in the proceeding and, on February 20, an agreement for
consent election was signed by the three parties , and ap-
proved by the Regional Director for Region 13, covering a
unit consisting of:
All nurses aides , licensed practical nurses, dietary and
housekeeping employees employed by the Employer
at its nursing home located at 419 West 16th Place,
Chicago Heights , Illinois , but excluding office clerical
employees , professional employees , registered nurses,
doctors , supervisors and guards as defined in the Act.
In an election held on March 20 , 1969, 13 votes were cast
for Council 19, 17 against, 2 challenged ballots were cast,
and no votes were cast for Local 4.
On March 25, 1969, Council 19 filed objections to the
conduct of the election, accusing Respondent of having
engaged in various acts of coercion and intimidation. On
the same date , Council 19 filed 8 (a)(1), (3), and (5) charges
against Respondent , alleging , among other things, an un-
lawful refusal to bargain since January 8, 1969 (Case
13-CA-8979).
On July 31, 1969, the Regional Director issued a com-
plaint in Case 13-CA-8979, alleging, inter alia, that Re-
spondent had refused to bargain with Council 19 in viola-
tion of Section 8(a)(5).
On August 4, 1969, the Regional Director ordered that
the objections to the election in Case 13 -RC-1 1744 be con-
solidated for hearing before a Trial Examiner with the
complaint which had been issued in Case 13-CA-8979.
On April 23, 1970, the Trial Examiner issued his Deci-
sion in the consolidated cases ( 186 NLRB 806). He con-
cluded , inter alia, that Respondent had violated Section
8(a)(1) in a variety of ways and had unlawfully refused to
bargain with Council 19, and his Recommended Order re-
quired Respondent to bargain with that labor organization.
The Trial Examiner also found merit in Council 19's objec-
tions to the election and , in the final paragraph of his Deci-
sion, under the section entitled "Recommended Order," he
stated:
Under the terms of the Order directing a hearing is-
sued by the Director of Region 13 on August 4, 1969,
Case 13-RC-11744 is severed from this proceeding
and as I have stated above it is recommended that the
election held pursuant to that case be set aside and the
petition dismissed . ( 186 NLRB at 823)
On May 4, 1970 , Council 19 sent Respondent 's attorneys
a written request for bargaining ; no reply was received
.from Respondent.
Thereafter , on July 29, 1970 , the Regional Director is-
sued his Supplemental Report on Objections and Direction
of Second election , which was served on both Respondent
and its counsel . In that document, the Regional Director
adopted "the findings , conclusions , and recommendations
of the Trial Examiner , to the extent consistent herewith."
Finding that the results of the election could not be said to
represent the freely expressed desire of the employees, the
Regional Director ordered that a second election be held
among the employees in the unit "at such time as the un-
dersigned deems appropriate ." 3 In so doing, of course, he
disregarded the Trial Examiner 's recommendation that the
election held "be set aside and the petition dismissed." At
the instant hearing, the parties stipulated that "the attor-
neys for Riviera Manor did object properly according to
Board procedures to any finding that a second election was
appropriate and to any finding that a bargaining order was
appropriate ." No clarification of the manner in which such
objection to the direction of second election was registered
was given at the hearing , and I presume that the stipulation
refers to the exceptions to the Trial Examiner 's Decision
filed by Riviera Manor rather than to any objections
lodged directly with the Regional Director after he issued
his supplemental report.
Respondent filed exceptions to the Trial Examiner's De-
cision , and counsel for Region 13 also filed limited excep-
tions. The exceptions filed by Region 13 contained no spe-
cific reference to the Trial Examiner's recommendation
that the petition be dismissed.
On November 25, 1970 , the Board issued its Decision
and Order (Riviera Manor Nursing Home, Inc., 186 NLRB
806). Among other things, the Board adopted the Trial
Examiner 's recommendation that a Section 8(a)(5) viola-
tion be found and a bargaining order be issued . Certain
minor modifications in the Trial Examiner 's Recommend-
ed Order were made. The Order of the Board read, in ac-
cordance with the standard format employed:
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the Recommended Or-
der of the Trial Examiner, and hereby orders that
Respondent , Riviera Manor Nursing Home , Inc., Chi-
cago, Illinois, its officers , agents, successors , and as-
signs, shall take the action set forth in the Trial
Examiner's Recommended Order , as modified herein-
after:... .
Thereafter, at some time prior to December 22, 1970,
Council 19 made another written demand for bargaining
upon Respondent; again , Respondent failed to answer.
Respondent chose not to comply with the Order of the
Board and, in due course, the Board sought full enforce-
ment of its Order in the Court of Appeals for the Seventh
7 In listing the choices available to the electorate on the ballot , the supple-
mental report mentions only Council 19 No explanation was offered at the
hearing for the omission of any reference to Local 4, 1 would assume, with-
out more, that the omission was due to inadvertence
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Circuit. Council 19 intervened and appeared as a party in
the court proceedings.
On July 13, 1972, in an unreported decision, the court
remanded the case to the Board for further findings about
the validity of certain authorization cards relied on by the
Board to establish the majority status of Council 19.
On November 16, 1972, the Board issued a Supplemen-
tal Decision (200 NLRB 333) in which it made certain of
the findings requested by the court and affirmed the con-
clusions of its prior Decision and Order.
On or about January 10, 1973, Riviera Manor filed a
motion for reconsideration of the Board's Supplemental
Decision, which the Board denied on February 22, 1973.
On April 12, 1973, the Board again sought plenary en-
forcement of its order by the Seventh Circuit.
On November 16, 1973, again in an unpublished deci-
sion , the Court of Appeals for the Seventh Circuit dis-
agreed with the Board's conclusion that Council 19 had
enjoyed majority status on the demand date and denied
enforcement of the bargaining order. The Court, however,
held that the 8(a)(1) findings of the Board were supported
by substantial evidence and concluded that those parts of
the Board's Order not related to bargaining should be en-
forced. Counsel for Respondent received a copy of the
court's decision I or 2 days after its issuance.
About 10 days later, toward the end of November, Local
593, to Respondent's knowledge, began to organize
Respondent's employees. On December 3, 1973, after a
card check conducted by a minister, Respondent extended
recognition to Local 593, as discussed below in more detail.
For reasons unclear on the record, the Seventh Circuit
did not issue its final judgment order enforcing the Board's
Order as modified until May 24, 1974. Thereafter, on May
29, 1974, the compliance officer for Region 13 for the first
time notified Respondent of its obligation to comply with
the portion of the Board Order which had been enforced.
Notices were subsequently posted and, on September 6,
1974, the Regional Director for Region 13 closed Case 13-
CA-8979.
Neal Bratcher, executive director of Council 19, testified
that his union continued its organizing activities among
Respondent's employees subsequent to the March 1969
election , for perhaps 1-1/2 years, but his testimony made it
clear that they occurred away from the premises of Riviera
Manor. Bratcher further credibly testified that he learned
of Respondent's recognition of Local 593 at some uncer-
tain time when he was consulted by his attorney about the
matter. Council 19 did not thereafter file charges with the
Board.4
2. The intervening activity of Local 4
The second string to General Counsel's bow relates to
certain activity engaged in by Local 4 during the long
course of the litigation referred to above. It will be recalled
that Local 4 appeared on the ballot in the election held on
March 20, 1969. It received no votes in that election and
° It should be noted that the charge here was filed by Local 4 on February
27, 1974, and, further, that Council 19 did not enter an appearance in this
proceeding
filed no objections to the conduct thereof. Local 4 ab-
stained from filing unfair labor practice charges against
Respondent, and it did not attempt to intervene in the
complaint case either before the Board or the Seventh Cir-
cuit. As earlier noted, when the Regional Director issued
his Direction of Second Election on July 29, 1970, he failed
to name Local 4 as a proper participant in that election.
On May 16, 1972, Local 4, having conducted an organiz-
ing campaign among Respondent's employees in April-
May 1972, made a demand for recognition upon Respon-
dent. The demand was rebuffed by Respondent's adminis-
trator, Herman Frey, who told the Local 4 organizer that
he was "tied up in litigation with another case in front of a
court and I was, I couldn't discuss anything like this with
him, he should contact our attorney." 5
On May 25, 1972, Local 4 filed a petition for an election
among Respondent's employees (Case 13-RC-12771). The
unit requested was the same as that comprehended by the
subsequent recognition of Local 593 and that covered by
the original petition of Council 19 except for the exclusion
of licensed practical nurses.
On May 30, 1972, Respondent filed charges against Lo-
cal 4 alleging violations of Section 8(b)(4)(C) and
8(b)(7)(A) and (C) (Case 13-CC-755). The charge form
first recited that the Board had issued an order requiring
Respondent to bargain with Council 19 and that the matter
was then sub judice before the Seventh Circuit. It contin-
ued:
On May 19, 1972, at a time when the Board's Order
directing Riviera Manor to bargain with Council 19
was still in effect, Mr. Ron Walski, a business agent of
Local 4, Service Employees' International Union,
made an oral demand that Riviera Manor voluntarily
recognize said Local 4 as the representative of the em-
ployees in a unit substantially similar to that described
above. Mr. Walski was told that Riviera Manor was
currently under an Order to bargain with Council 19.
At this point Mr. Walski threatened to call the em-
ployees out on strike and to set up a picket line... .
In view of the outstanding order to bargain with
Council 19, the threatened strike and picketing by said
Local 4 are in violation of the aforementioned provi-
sions of the Act.'
On the same day that the charges described above were
filed, May 30, 1972, Local 4 requested in writing that its
petition be withdrawn because of the bargaining order, of
which, Local 4 stated, it had no previous knowledge. There
is no indication in the record that Respondent received a
copy of this letter. The Regional Director approved the
withdrawal request on the following day. Respondent's
charges were withdrawn on June 6.
Local 4 still continued to maintain an interest in organiz-
5 Through what appears to have been a lack of coordination , Local 4's
organizers and its counsel seem to have been unaware of the aftermath of
the March 1969 election in which Local 4 had participated.
6 Sometime between May 19, and 30, 1972. Herman Frey, the administra-
tor of Riviera Manor, had posted a notice to the employees stating that he
had heard that some employees were planning to strike to force Riviera
Manor to deal with Local 4 and pointing out to the employees that it would
be illegal for Riviera Manor to recognize Local 4 due to the outstanding
bargaining order running to Council 19.
RIVIERA MANOR NURSING HOME 129
ing Respondent's employees, as indicated by a letter that it
sent to the Regional Director in September 1973 inquiring
about the status of the case then pending in the court of
appeals and expressing its "abiding interest" in repre-
senting Respondent's employees. Riviera Manor, however,
did not receive a copy of the letter, and the record contains
no evidence which would establish that Riviera Manor had
specific knowledge of any further continuing interest by
Local 4 subsequent to the May 30, 1972, withdrawal of its
petition.
3. Respondent's recognition of Local 593
The only testimony relating to the recognition granted
by Respondent to Local 593 was given by Respondent's
administrator, Herman Frey. Frey testified that on the first
two occasions toward the end of November 1973 when
Local 593 representatives visited Riviera Manor, he or-
dered them off the premises, on the second occasion
threatening to call the police; that on November 30, 1973,
he received both a telephone call and a letter from repre-
sentatives of Local 593 claiming majority status and de-
manding recognition ; that he called Gus Potekin, the
owner of Respondent, and apprised him of these
communications; that Potekin told him that he would meet
with Local 593 to ascertain if they did in fact represent a
majority, in which case he would extend recognition to,
and bargain with, that union; that Potekin told him he was
willing to take this course of action because he did not
want to repeat the history of the previous 5 years of litiga-
tion and attorneys' fees and he was "sick and tired" of
problems with unions; that a meeting was held on Decem-
ber 3, 1973, attended by Potekin, Frey, several representa-
tives of Local 593, and a minister; that the minister, Frey,
and Potekin all compared the signatures of the employees
on authorization cards with various personnel forms; that
Local 593's card majority, as ascertained by this compari-
son, was, to the best of Frey's recollection, "somewhere
between 55 and 70 percent"; and that Potekin thereupon
told the Local 593 representatives that he would recognize
and bargain with the Union. There is no evidence in the
record that the Union did not in fact have a valid and
untainted card majority or that Respondent assisted Local
593 in any manner in obtaining that majority.
After the recognition on December 3, 1973, three nego-
tiating sessions were held and, sometime in the latter part
of December, Riviera Manor and Local 593 executed a
collective-bargaining agreement effective January 1, 1974,
to December 31, 1976. That agreement contained a clause
requiring all employees who were members of Local 593 at
the time of the execution of the agreement to remain mem-
bers of Local 593 and further requiring all employees who
were not members of Local 593 to join the Union as a
condition of employment after 30 days. The above-de-
scribed union-security clause has since been enforced and
maintained.
7 According to Frey, Respondent 's counsel had "called us in November,
told us we had won the case and were fair game for any union, anyone
could organize us."
Analysis and Conclusions
The General Counsel asserts that Respondent's exten-
sion of recognition to, and consummation of a collective-
bargaining agreement with, Local 593, constituted conduct
violative of Section 8(a)(2) under the theory of Midwest
Piping & Supply Co., 63 NLRB 1060. As recently restated
by the court in N.L.R.B. v. Western Commercial Transport,
Inc., 487 F.2d 332, 333 (C.A. 5, 1973):
Under the doctrine of Midwest Piping & Supply Co., 63
NLRB 1060 (1945), an employer faced with conflict-
ing claims of rival unions which give rise to a question
concerning representation must adhere to a policy of
strict neutrality and may not recognize or enter into a
contract with either union until one has been certified
under the procedures provided by the Act.
The existence of a "conflicting claim" which gives rise to
a question concerning representation may be established in
several ways. In Shea Chemical Corporation, 121 NLRB
1027, 1029 (1958), the Board held that a "real question
concerning representation" was raised by the filing of a
petition for election "supported ... by an adequate ad-
ministrative showing of interest." The Board has consis-
tently adhered to that position. In the recent case of
Traub's Market, Inc., 205 NLRB 787 (1973), enforcement
denied, (C.A. 3, October 30, 1974) (unpublished order), the
Board noted:
[T]he sole requirement necessary to raise a question
concerning representation within the meaning of the
Midwest Piping doctrine, as modified by the Board, is
that the claim of the rival union must not be clearly
unsupportable and lacking in substance. Playskool,
Inc., 195 NLRB 560. That the Retail Clerks claim
met the Midwest Piping criteria is shown by the fact
that at the time the contract was executed there was
on file with the Board a petition supported by a show-
ing of interest.
See also Peter Paul, Inc., 185 NLRB 281 (1970); cf. Kona
Surf Hotel, 201 NLRB 139, 142 (1973) (petition with "some
showing of interest" sufficient).
The Board has further held that the "conflicting claim"
arising from the pendency of the representation petition
remains viable for purposes of the Midwest Piping doctrine
so long as the representation case remains resolved. Thus,
in Vanella Buick Opel, Inc., 194 NLRB 744 (1971), enfd.
(C.A. 3, April 3, 1973) (unpublished order), an election had
been held and the Regional Director had ordered that the
Trial Examiner hear and make recommendations on chal-
lenged ballots in the election proceeding, which was con-
solidated with the related unfair labor practice case. Prior
to issuance of the Trial Examiner's decision, the employer
granted recognition to one of the competing unions. The
Board held that, in these circumstances, the employer had
violated its obligation of neutrality. Accord, The Standard
Steel Spring Company, 80 NLRB 1082, enforcement denied
180 F.2d 942 (C.A. 6); The Drackett Company, 207 NLRB
447 (1973); Lake City Foundry Company, Inc., 173 NLRB
1081 (1968).
The General Counsel primarily contends that the fore-
going line of authority compels a finding of violation here.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He argues that on December 3, 1973, when Local 593 was
recognized , the representation case had not been finally
resolved , due to the asserted vitality of the outstanding Di-
rection of Second Election issued by the Regional Director
for Region 13 on July 20, 1970, and that such extension of
recognition flies in the face of the cited precedents which
hold that, as a matter of law , pending representation peti-
tions constitute a "conflicting claim " within the contempla-
tion of Midwest Piping, supra.
Although Respondent takes issue with General
Counsel's contention that a Direction of Second Election
issued 3- 1/2 years prior to the recognition , and based on a
petition filed nearly 5 years prior to recognition , could rea-
sonably be considered a current "conflicting claim ," it also
frontally assaults at some length the main prop upon which
General Counsel relies-the existence of an outstanding
Direction of Second Election.
Respondent argues that, in law, the July 20, 1970, Direc-
tion of Second Election was null and void. This contention
is in part premised on the fact that in the Trial Examiner's
April 23, 1970, decision in the consolidated cases, the final
paragraph of his decision , following his recommended Or-
der, states:
Under the terms of the Order directing a hearing is-
sued by the Director of Region 13 on August 4, 1969,
Case 13-RC-11744 is severed from this proceeding
and as I have stated above it is recommended that the
election held pursuant to that case be set aside and the
petition dismissed. [Emphasis supplied.]
Putting this recommendation together with the subsequent
Order of the Board, stating, in pertinent part, "the Nation-
al Labor Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner ," Respondent argues
that the Board thereby adopted and gave force and effect
to the Trial Examiner 's recommendation that "the petition
[be] dismissed ." It follows, says the Respondent, that the
Regional Director was bound to dismiss the petition, and
that his Direction of Second Election was , consequently, a
nullity.
I find Respondent's argument untenable . For the rea-
sons indicated below, there is no justification for conclud-
ing, despite its location in his Decision , that the Trial
Examiner 's recommendation , upon severing the represen-
tation case , that the election be set aside and "the petition
dismissed" was intended or understood to be part of his
"recommended order" to the Board which the Board there-
after intended to adopt.
Critical to Respondent 's contention here is the nature of
the election arrangement which spawned the March 20,
1969, election . At the hearing in this case, the parties stipu-
lated that a "consent election" was held , but did not intro-
duce into evidence the relevant documents from the repre-
sentation case . I have taken official notice of the pertinent
election agreement upon which the March 20, 1969, elec-
tion was premised 8 The agreement is an "Agreement For
Consent Election ," of the type authorized by Section
102.62(a) of the Board's Rules and Regulations and State-
e The agreement was entered in evidence in consolidated Cases
13-RC-11744 and 13-CA-8979 as G. C. Exh 1(e).
ments of Procedure , Series 8 , as amended , in which the
parties agree that all rulings on objections and challenged
ballots shall be finally determined by the Regional Direc-
tor and that, in the words of the agreement, "If objections
are sustained , the Regional Director may in his report in-
clude an order voiding the results of the election and shall
be empowered to conduct a new election under the terms
of this agreement at a date, time, and place to be de-
termined by him." 9
Taking into account the nature of this agreement, by
which the parties vested ultimate decision-making authori-
ty in the Regional Director, rather than in the Board, I find
it inconceivable that the Board intended to attempt to ab-
rogate that agreement by its Order adopting the recom-
mendations of the Trial Examiner. The Board has twice
recently noted that by signing consent election agreements,
the parties "agree to make the Regional Director the final
arbiter of any questions relating to the election," Sports
Coach Corporation of America, 203 NLRB 145, fn 2 (1973);
Mylen Iron and Aluminum Works, Inc., 216 NLRB No. 141
fn 1 (1975). I would not lightly infer that, the Board having
provided for questions arising under such consent-election
agreements to be finally determined by the Regional Direc-
tor, it would nonetheless choose to ignore the provisions of
such an agreement and attempt to intrude upon the prov-
ince reserved to the Regional Director. I conclude, there-
fore, that the Board's Order should not be construed as a
direct instruction to the Regional Director to take the ac-
tion recommended to the Regional Director by the Trial
Examiner; i.e., that the "petition [be] dismissed."
Respondent also argues , without citing authority, that
"[i]t is axiomatic that a question concerning representation
and a bargaining order, which signifies no question con-
cerning representation, are inconsistent and cannot co-ex-
ist." It thus impliedly advances the contention that once
the representation case was severed and remanded to the
Regional Director, he was under an obligation, in view of
the Board's entry of a bargaining order running to Council
19, to dismiss the petition of his own volition.
It is settled law that the authority granted to Regional
Directors by the parties to consent-election agreements
may not be exercised in bad faith, arbitrarily, capriciously,
or, of special relevance here , in a manner inconsistent with
Board policies or statutory requirements. General Armature
& Manufacturing Co., 89 NLRB 654 (1950); Sumner Sand &
Gravel Company, 128 NLRB 1368 (1960), enfd. 293 F.2d
754 (C.A. 9, 1961); Delta Drilling Co., 169 NLRB 617
(1968), enforcement denied 406 F.2d 109 (C.A. 5, 1969).
Assuming arguendo that the question is open to consider-
ation in this forum, I think that neither the Act nor Board
policy mandates dismissal of a representation petition once
the Board has entered a bargaining order comprehending
the same unit of employees.
It is true that for a brief period after its reversal, in Ber-
net Foam Products Co., Inc., 146 NLRB 1277 (1964), of the
9 This long-recognized form of election procedure , vesting final authority
in Regional Directors, should be compared to the type of "consent -election"
agreement described in Sec . 102 62(b) of the Board 's Rules and Regulations,
commonly referred to as a "Stipulation for Certification upon Consent Elec-
tion" agreement , which provides for a "consent election leading to a deter-
mination by the Board of the facts ascertained after such consent election "
RIVIERA MANOR NURSING HOME 131
waiver doctrine adopted in Aiello Dairy Farms, 110 NLRB
1365 (1954), the Board took the position, apparently with-
out intensive consideration , that its issuance of a bargain-
ing order puts to rest any questions concerning representa-
tion. In S.N.C. Manufacturing Co., Inc., 147 NLRB 809,
811 (1964), the Board said:
[I]n view of our holding that Respondent violated Sec-
tion 8(a)(5) and our order requiring Respondent to
recognize and bargain with the Union, we do not
adopt the Trial Examiner's further recommendation
that a new election be directed . Instead , and as no cur-
rent question concerning representation exists, we now
dismiss the petition in Case No. 30-RC-4 (formerly 13-
RC-9218) and vacate all proceedings held in connec-
tion therewith. [Emphasis supplied.]
See also Irving Air Chute Company, Inc., Marathon Division,
149 NLRB 627, 629 (1964).
Subsequently, in New Alaska Development Corp., Alaska
Housing Corporation, 175 NLRB 780 (1969), the Board in
similar circumstances , dismissed the pending petition, but
without specifying that its action was required by the ab-
sence of a question concerning representation:
We shall also dismiss the representation petition in
view of the finding that the Respondent unlawfully
refused to bargain with the Union and we shall issue a
bargaining order.
After its bargaining order in New Alaska had been remand-
ed for further consideration by the Court of Appeals for
the Seventh Circuit (441 F.2d 491), the Board explained on
remand (New Alaska Development Corp., 194 NLRB 830
(1972) why it had earlier dismissed the petition, and the
explanation (and the Board's action in reinstating the peti-
tion) plainly established that it perceived no legal barrier to
the coexistence of a petition and a bargaining order (at
831):
In its original Decision and Order, the Board found
the Union's objections to the election meritorious and
set aside the election. However, as the Board further
found that the Respondent had unlawfully refused to
bargain with the Union, a bargaining order was issued
thereby obviating the necessity of a second election, and
the representation petition was dismissed. In view of
our Decision herein [concluding that a bargaining or-
der was not warranted], the basis for that dismissal no
longer exists. [Emphasis supplied.]
The Board then went on to reopen the representation case
and direct a second election.
That there is no legal impediment to the concurrent exis-
tence of an election petition and a bargaining order is im-
plicit in the rationale of the Fourth Circuit's recent deci-
sion in General Steel Products, a Division of the Seng
Company v. N.L.R.B., 503 F.2d 896 (1974), enfg. 207
NLRB 875 (1973). In that case the Board, in 1966, had set
aside a 1964 election, entered a bargaining order, and dis-
missed the union's petition. After extended litigation, the
Board, in 1972, held on remand that its bargaining order
was unnecessary, reinstated the 1964 election petition, and
directed a second election.
Thereafter, in the court of appeals, the employer chal-
lenged the authority of the Board to reinstate the petition.
The court rejected the challenge and characterized as
merely "improvident" the Board's original dismissal of the
petition:
The union's 1964 representation petition satisfied
the Act's requirements and invoked the Board's
power to order an election. The Board's subsequent
entry of a bargaining order based on a card count,
however, appeared to make the election petition su-
perfluous and the Board dismissed it. When the bar-
gaining order was ultimately determined to have
been erroneously granted, the election petition be-
came an appropriate instrument for determining the
question of representation over which the parties
had been continuously litigating.
The Board's correction of its error was not limited
to vacating the bargaining order which this court
had declined to sustain. It could go further and rein-
state the election petition which it had improvident-
ly dismissed on the mistaken assumption that its
bargaining order was enforceable.io
The concept of a "question concerning representation"
appears to derive from Section 9(c)(1) of the Act. That
section establishes two junctures in the statutory procedure
(the filing of a petition and after a hearing on the petition)
at which the Board must have cause to believe or find that
a "question of representation" exists in order to proceed
and, inferentially, if it does not, must then dismiss the peti-
tion. Nothing in the statute suggests that once a petition
has been processed to the election stage and an order has
been entered providing for a second election, the "question
of representation" disappears, and the petition must be dis-
missed, simply because the Board has also entered a bar-
gaining order. That is clearly the view of the Board and the
Court of Appeals for the Fourth Circuit, as expressed in
General Steel Products, supra, and it seems eminently
sound. I
I accordingly conclude that the action of the Regional
Director was not so at odds with Board policy or the Act as
to be a nullity. Since I have already rejected Respondent's
argument that the Board's Order in 186 NLRB 806 (1970)
was not intended to encroach upon the authority of the
Regional Director under the Agreement for Consent Elec-
10 In its brief to the Supreme Court in opposition to Respondent 's petition
for wnt of certiorari in General Steel Products (No. 74-694), the Board noted
that it had "erroneously dismissed " the petition , and that it was empowered
to "correct its error"
11 Respondent refers to two cases, Peerless of America, Inc. v. N.L.R B.
484 F.2d 1108 (C.A. 7, 1973), and Fort Smith Outerwear, Inc v. N.L R.B.,
499 F.2d 223 (C.A. 8), where the courts had set aside bargaining orders, and,
sua sponte, had directed the Board to conduct second elections The Board,
in unreported motions, requested that the orders to conduct elections be
deleted , on the ground that the petitions had earlier been dismissed by the
Board Distinguishing these same cases in General Steel Products, supra, the
Fourth Circuit said:
It is one thing for the Board to assert its own authority to reinstate a
representation petition and order an election under §9 (c) of the Act, as
it has done here It is quite another proposition for the Board to ques-
tion a court's exercise of similar authority , as it did in Peerless and Ft.
Smith. The Board 's positions are complementary , not inconsistent
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion by directing him to dismiss the petition, I find that on
December 3, 1973, the Regional Director 's July 20, 1970,
Direction of Second Election was a viable order.
The question remains whether Respondent's recognition
of Local 593, in all the circumstances of this case , consti-
tuted a Midwest Piping violation. As earlier discussed, the
Board maintains the view that recognition of a union at a
time when a representation proceeding is unresolved vio-
lates the employer's obligation of neutrality. The viability
of the Direction of Second Election in the present case, as
a matter of logic, brings into play that gloss on Midwest
Piping.
An outstanding direction of election may be likened, in
legal implication, to an outstanding bargaining order is-
sued by the Board. There can be little doubt that an em-
ployer against whom such an order has been entered would
be held to run afoul of the Midwest Piping rule if, while the
order was being contested before a reviewing court, the
employer extended recognition to a stranger union. The
Respondent here recognized that legal proscription when,
in 1972, it filed charges against Local 4 for seeking recogni-
tion. The charges, and an explanatory notice posted to the
employees, were based on the theory that it would be ille-
gal to recognize Local 4 because of the outstanding bar-
gaining order running to Council 19. It would seem that
the Direction of Second Election should have been treated
with the same circumspection.
Quite recently, in Kay Jay Corporation d/b/a McKees
Rocks Foodland, 216 NLRB No. 166 (1975), the Board has
emphatically reaffirmed its adherence to the rule of Mid-
west Piping. In Kay Jay, fn. 6, the Board pointed out that
"the heart of the Midwest Piping doctrine" is the desirabili-
ty of the selection of collective-bargaining representatives
through Board procedures rather than less formal and
trustworthy methods, a preference lately approved by the
Supreme Court in Linden Lumber Div., Summer & Co. v.
N.L.R.B., 419 U.S. 301 (1975). Accordingly, the Board
said, the doctrine must be "strictly construed," and it quot-
ed, and underscored, the standard it had set out in Plays-
kool, Inc., a Division of Milton Bradley Company, 195
NLRB 560 (1972):
In fact, the sole requirement necessary to raise a question
concerning representation within the meaning of the Mid-
west Piping doctrine, as modified by the Board, is that
the claim of the rival union must not be clearly unsup-
portable and lacking in substance.
I construe "must not be clearly unsupportable" to mean
that the General Counsel need not prove very much, and
the employer is saddled with a heavy burden of justifica-
tion, when the latter chooses to recognize one union in the
teeth of a pending claim by another. I further conceive the
Board's test to be keyed primarily to the employer's rea-
sonable perception of the viability of the claim asserted by
the competing union.12
12 The Board holds that an employer may ignore a "naked claim," see
Robert Hall Genttlly Road Corporation, 207 NLRB 692 (1973) (but cf The
Drackett Company, 207 NLRB 447, fn. 34 (ALJD) (1973); American
Bread Company, 170 NLRB 85, 88 (1968)) Whether a claim is "naked" or
not, however, seems to depend on facts ascertained after recognition and
during the unfair labor practice proceeding . In Kona Surf Hotel, 201 NLRB
In the present case, I am constrained to find that Re-
spondent overstepped the bounds of neutrality. In so con-
cluding, I rely first on the subsisting Direction of Second
Election of July 20, 1970. That authoritative directive by
an agent of the Board, which I have found to have pos-
sessed viability in 1973, represented a continuing claim of
representation which Respondent could ignore only at its
peril. That the 1969 petition which gave rise to the Direc-
tion of Second Election had current vitality in 1973 is, I
think, settled by the Board's Decision in General Steel
Products, 199 NLRB 859, where, in 1972, the Board rein-
stated a petition filed in 1964 and dismissed in 1966, and
ordered a second election thereon, without requiring a new
showing of interest.
In addition, the totality of the situation known to Re-
spondent at the time it recognized Local 593 contributed to
the existence of the kind of "conflicting claim" which pro-
hibits an employer from choosing between unions.
Respondent knew that Council 19 had, in 1969, sought
to represent its employees and had secured a bargaining
order from the Board. It knew that Council 19 had been
attempting to protect that interest by intervening and parti-
139 (1973), for example, the employer recognized and executed a contract
with one union on the basis of a card check the day after another union had
filed a petition At the time of recognition , there was no way for the employ-
er to know whether or not the petition was adequately supported , at that
point, it was, from the employer 's point of view , no more than a "naked
claim ." In fact, it was later determined that the rival union's petition had
been accompanied by less than the requisite 30 percent showing of interest,
but the Board nonetheless held that a "petition supported by some showing
of interest" ( the evidence did not show how many cards accompanied the
petition. see 201 NLRB at 142, In 8) is sufficient to raise a question con-
cerning representation. See also Traub's Market, Inc., 205 NLRB 787 (1973)
On the other hand, in Robert Hall, supra, after the rival union's supported
petitions for less-than -storewide units had been found by the Regional Di-
rector to be inappropriate, that union withdrew its petitions , at the same
time informing the Regional Director that it wished to participate in any
election held, and promptly notifying the employer that it was continuing to
organize the employees. The employer's recognition of another union 6 days
later was held valid, because , at the complaint hearing, no evidence was
adduced that the rival union did in fact continue to solicit cards after with-
drawing the petitions . Playskool, Inc, supra, was distinguished on the
ground that , following its election defeat, the rival union in that case "mani-
fested clear evidence of a continuing organizational effort " Since the rival
union in Robert Hall had in fact obtained 24 cards, had indicated its desire
to participate in an election in the overall unit, and had stated that it was
continuing to organize the employees , how did its claim differ meaningfully
from the petition supported by "some " showing of interest in Kona Surf
It might be asked why the actual substance of the claim is relevant A
union may have been organizing feverishly and notoriously for months
without having secured a single card, but the employer cannot (or should
not) know that . A union may have been campaigning quietly but successful-
ly for months , without the employer's knowledge , at the time the demand is
made , should the Board encourage the employer to take the chance of
extending recognition to another union in the hope that the rival union's
prior silence indicated that it had no support9
The facts as to the substance of the claim, absent inquiry among the
employees (a procedure which surely should not be promoted), will, in
many cases , only be adduced after the fact of recognition No sound doctri-
nal basis appears for making the violation turn on the adventitious, ex post
facto, answer to that question In Kay Jay, supra, the Board noted that the
"core" of the Midwest Piping rule is that "[wlhen rival unions attempt to
obtain recognition from an employer , a question concerning representation
is thereby raised," a question which should be resolved only by the Board.
That formulation seems accurate to me-and the exception which provides
a defense upon a showing that one of the claims was "clearly unsupporta-
ble" seems inconsistent with the simpler notion that a "question concerning
representation" is raised when "rival unions attempt to obtain recognition
from an employer" The Board might well conclude that a naked claim is
sufficient to invoke an employer's duty of neutrality
RIVIERA MANOR NURSING HOME
cipating in the lengthy court proceedings. It knew that until
those proceedings were resolved, Council 19 could not as-
sert its interest by any more effectual course than it had
already undertaken. In mid-1972, in fact, Respondent had
defended against Local 4's incursion by brandishing the
shield of the bargaining order running to Council 19. When
it extended recognition to Local 593 on December 3, 1973,
just 2 weeks after the court of appeals decision was served,
Respondent had absolutely no reason for believing that
Council 19 had abandoned the goal for which it had ex-
pended considerable time, effort, and funds; any assump-
tion, indeed, would necessarily have been to the contrary.
Clearly, Council 19 was not, in these circumstances, re-
quired to engage in the pointless exercise of making a for-
mal demand on Respondent every few months in order to
maintain its claim . Compare Playskool, Inc., supra, 195
NLRB at 560, where, in the past, the employer had consis-
tently refused to afford recognition on the basis of card
checks: "Nor . . do we, in circumstances such as exist
herein, require the rival union to have a pending request
for recognition, for the Board does not require a party to
perform a futile act."
The claim of Local 4 presented similar considerations
which Respondent cculd not have blindly ignored. In May
1972, some 18 month before the recognition of Local 593,
Local 4 had demanded recognition, threatened to call the
employees out on strike, and filed a petition with the
Board. Respondent repulsed all these efforts by pointing to
its legal embroilment with Council 19, and Local 4, ac-
quiescing in the inevitable, withdrew from the scene to
await a more propitious occasion. As with Council 19,
however, Respondent could hardly have escaped the infer-
ence that Local 4 was, of necessity, simply biding its time
until it was legally free to offer its representative services to
Respondent's employees.13
Against this background, and with the continuing force
of the Direction of Second Election, I do not think that the
Midwest Piping doctrine permitted Respondent to grant
recognition to Local 593 2 weeks after it received the deci-
sion of the Seventh Circuit which broke the legal logjam. In
the given, and unusual, circumstances, the rival claims
were there for any reasonable employer to see and they
plainly were "not clearly insupportable and lacking in sub-
stance." One of the things that Midwest Piping, as recently
construed in Kay Jay Corporation, supra, stands for is the
proposition that the race is not necessarily to the swift; by
failing to observe that caveat, Respondent has violated
Section 8(a)(1) and (2) of the Act.
13 I deem the facts that Council 19 did not file a charge here , or partici-
pate in the hearing , to be of no consequence . The record is unclear as to
when Council 19 first learned of the recognition of Local 593; its executive
director testified that he discovered the fact perhaps in 1974, when he was so
advised by his attorney . By that time, Local 4 's charge of February 27, 1974.
may already have been on file The decision of Council 19 not to take part
in the hearing might be attributable to any of several factors, including a
determination that it did not. want to incur still more legal expenses in a
cause in which the General Counsel and Local 4 would undertake to repre-
sent its basic legal interests . In any event , what matters is the employer's
reasonable perception of the situation at the time recognition is extended.
CONCLUSIONS OF LAW
133
1. Respondent Riviera Manor Nursing Home, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Council 19, Local 4, and Local 593 are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. By extending recognition to and executing a collec-
tive-bargaining agreement with Local 593 in December
1973, at a time when a question concerning the representa-
tion of its employees existed, Respondent has rendered and
is rendering unlawful assistance and support to Local 593,
in violation of Section 8(a)(1) and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
One traditional remedy for the violations found here is
an order requiring Respondent to withdraw recognition
from Local 593 and to cease giving effect to its agreement
with Local 593, unless and until Local 593 is certified by
the Board, and I shall recommend that such relief be en-
tered.
A second customary remedy is to require Respondent to
reimburse employees for dues, fees, or other monies paid
under the union-security clause of the contract, with inter-
est at the rate of 6 percent per annum, computed in the
manner set forth in Seafarers International Union of North
America Great Lakes District, AFL-CIO, 138 NLRB 1142
(1962). Reimbursement would not be required, however,
for employees who voluntarily joined Local 593 prior to
the date on which the bargaining agreement was executed,
see Playskool, Inc., 195 NLRB at 562 (1972). While I shall
enter such an order, being bound, as I am, by Board law, it
seems to me that the Board might well reconsider the desir-
ability of requiring such a remedy in this sort of case.
As the Board has made clear in Kay Jay, supra, the Mid-
west Piping rule is essentially one of sound administra-
tion-that where unions are competing, the most orderly
way of ascertaining the collective-bargaining representative
of the employees is through Board election procedures.
Unlike cases involving recognition extended on the basis of
an employer's actual assistance in ensconcing a union, or
before an employer has a representative complement of
employees in his employ, or where the evidence demon-
strates that the recognized union did not in fact employ
majority support, it might be argued that the cases falling
into the Midwest Piping category do not so much give rise
to a substantial inference that the employees have been
deprived of their freedom of choice as that their choice has
been determined by a method deemed to be inferior. Use
of that method does not necessarily mean , however, that as
of the time the employees signified their allegiance to the
union whose recognition is subsequently held improper,
the employees did not truly desire to be represented by that
union. On the evidence in this case, I would say that was
probably true here. The same conclusion might be reached
on the facts in Playskool, Inc., supra, where the complain-
ing union had for 17 years unsuccessfully attempted to or-
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganize the Respondent's employees and had received only
148 votes out of 494 eligible voters in the most recent elec-
tion, held just 4 months before the unlawful recognition of
another union which had obtained a card majority.
In rejecting the Brown-Olds remedy in Local 60, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO v. N.L.R.B., 365 U.S. 651 (1961 ), the Supreme Court
held that it would not "effectuate the policies of the Act"
(see Section 10(c)) to require dues reimbursement in the
case of a closed-shop agreement. The Court held that there
was no showing that anyone had in fact been required to
join the union by virtue of the closed-shop agreement-"So
far as we know , [the employees] may have been members
for years on end"-and that "[w]here no membership in
the union was shown to be influenced or compelled by
reason of any unfair practice , no `consequences of viola-
tion' are removed by the order compelling the union to
return all dues and fees collected from the members" (pp.
654, 655).
The Board might consider applying a similar theory in
these Midwest Piping cases , where the evidence shows, as it
does here , that recognition was predicated upon a showing
of majority support, to whatever extent ill-informed or un-
considered,14 in an appropriate unit, in a context free from
employer coercion or independent acts of assistance. I do
not think such a remedial rule would be in conflict with the
theoretical underpinning of the Midwest Piping cases to the
effect that a question concerning representation, better left
to Board resolution , existed at the time of recognition. The
Board could so find and yet apply its "broad discretion to
adapt its remedies to the needs of particular situations,"
Carpenters Local, supra, 365 U.S. at 655. In this "particular
situation ," there is no indication that dues reimbursement
is necessary to remedy a violation "at the heart" of which is
the Board 's judgment that, in certain circumstances, the
issue of representation is better resolved by the election
process.
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 15
The Respondent , Riviera Manor Nursing Home, Inc.,
Chicago , Illinois, its officers, agents , successors , and as-
signs , shall:
1. Cease and desist from:
14 Employee support of a union is undoubtedly an ephemera) thing. Even
an election conducted under the most solemn safeguards might turn out
differently 2 weeks later.
15 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 finding,
conclusions , and recommended Order herein shall, as provided in Sec.
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.
(a) Assisting or contributing support to Hotel-Motel
Service Workers, Drug Stores, Sports Events, Industrial
Catering, and Nursing Home Employees Union, Local No.
593, AFL-CIO, or to any other labor organization, by re-
cognizing such labor organization as the exclusive repre-
sentative of any of their employees for the purpose of col-
lective-bargaining at a time when a question concerning
representation exists.
(b) Giving effect to or enforcing the collective-bargain-
ing agreement executed with Local No. 593, effective Janu-
ary 1, 1974, or to any modification, extension, renewal, or
supplement thereto, unless and until Local No. 593 has
been certified by the National Labor Relations Board as
the exclusive bargaining representative of the employees
covered by such agreement; provided, however, that noth-
ing herein shall require Respondent to vary or abandon
any existing term or condition of employment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local
No. 593 as a representative of its employees for the purpose
of collective-bargaining unless and until said labor organi-
zation has been duly certified by the National Labor Rela-
tions Board as the exclusive representative of such employ-
ees.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts due un-
der the terms of this Order.
(c) Reimburse all present and former employees for all
initiation fees, dues, and other moneys, if any, paid by or
withheld from them, in the manner provided in the "Reme-
dy" section of this Decision entitled "The Remedy."
(d) Post at its place of business in Chicago Heights, Illi-
nois, copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places , including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith.
16 In the event the Board 's 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 "