Sisters Of Mercy Health Corp., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1985

277 N.L.R.B. 1353 (N.L.R.B. 1985)

SISTERS OF MERCY HEALTH CORP
Samaritan Health Center, Deaconess Hospital Unit,
a Division of the Sisters of Mercr Health Cor-
poration , Inc. and Clerical, Technical & Profes-
sional Employees Local 417, OPEIU, AFL-
CIO. Cases 7-CA-21965 and 7-CA-22952,
30 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 2 May 1984 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, as
modified, and conclusions and to adopt the recom-
mended Order. -
The question presented here is whether the Re-
spondent unlawfully withdrew recognition of
OPEIU Local 417 Union as collective-bargaining
representative of its nonprofessional employees. Al-
though we agree with the judge that the Respond-
ent did not, violate Section 8(a)(5) and (1) of the
Act, our rationale is different.
Local 417 has had a series of collective-bargain-
ing agreements with the Respondent. The latest
contract covered the period from 1 July 1980 to 30
June 1983. In January 1983' a majority of the unit
employees signed a petition requesting a change in
local representation. The petition was mailed to the
president of the International, who then transferred
the unit employees from Local 417 to OPEIU
Local 7. On 27 January, Benerie Austin, president
of Local 417, wrote to the Respondent informing it
of the transfer and stating that the Respondent
should "direct all future communications concern-
ing wages, hours, and working conditions, includ-
ing current or pending grievances and arbitrations
to either Lois Finney or to Margaret Mobley,
Chief Steward for the Deaconess Unit of OPEIU
Local 7." On that same day, Austin sent a letter to
unit employees notifying them of the switch in
locals. The Respondent refused to recognize Local
7, but met with Local 7's stewards on the condition
that it would not prejudice its position before the
Board. In February and early March, Local 7 filed
unfair labor practice charges against the Respond-
' All dates hereafter refer to 1983
1353
ent alleging both a refusal to bargain and to remit
union dues.
On 15 March, Austin sent the Respondent a
letter stating that the International had -approved
the administrative transfer, of the bargaining unit to
Local 7 in accordance- with "the stated wishes of
the majority of those in the bargaining unit." The
letter also said that Local 7'had become the "offi-
cial representative" of the bargaining unit, that all
dues moneys should be forwarded to it, and that it
stood "ready and willing to serve unit members."
Shortly thereafter, the Regional Director found
that the charges filed against the, Respondent by
Local 7 were without merit.-
On 24 March, Austin notified, the Respondent,
by letter, of Local 417's desire to negotiate a suc-
cessor collective-bargaining ' agreement to the one
due to expire on 30 June. The Respondent refused
to recognize Local 417 until it had prevailed in a
new election on the basis that it had disclaimed in-
terest in representing the, employees, had acted in a
manner consistent with the disclaimer, and had ad-
mitted that a majority- of unit employees did not
wish to be represented by it. In May, 'Local 417
again demanded recognition. It also informed the
Respondent that a majority' of employees had
signed authorization cards and that if the Respond-
ent so desired it was amenable to havinga neutral
party review the authenticity of those cards. The
Respondent did not reply to Local 417's request.
The Respondent also did not accept grievances
filed in the name of Local 417. In December, it in-
formed unit employees that thereafter they would
be accorded the same benefits as its nonunion -em-
ployees:
The judge found that Local 417 enjoyed a rebut-
table presumption of majority status during 'the,
term of its collective-bargaining agreement with
the Respondent. He further found that the Re-
spondent had a good-faith doubt as to Local 417's
majority status on the basis that Local 417 had in-
formed it that, pursuant to'the wishes'of a majority
-of unit employees, representation had been` ttaris-
ferred from Local 417 to Local 7, and that as a
result thereof Local 417 had disclaimed interest in
representing the unit employees. Accordingly, the
judge found that the Respondent had rebutted the
presumption of Local 417's majority status, and dis-
missed the complaint. As noted above, we do not
adopt this rationale.
It is well established that a union enjoys an irre-
buttable presumption of majority status during the
term of a collective-bargaining agreement.2 An em-
2 Hexton Furniture Co., 111 NLRB 342 (1955)
277 NLRB No. 159
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer, therefore, does not have the right to with-
draw recognition of a union during this period on
the basis of a good-faith doubt, or even actual
proof of loss of a union's majority status.3 Inas-
much as the contract between the Respondent and
Local 417 had not expired, the Respondent's good-
faith doubt of Local 417's majority status was not a
defense to its refusal to recognize Local 417's rep-
resentative status.
We find, however, that Local 417 had unequivo-
cally disclaimed any interest in further representing
unit employees when it transferred jurisdiction
over the bargaining unit to Local 7,4 Further,
Local 417 did not engage in any action inconsistent
with its disclaimer for 2 months. Under these cir-
cumstances, the Respondent could refuse to recog-
nize Local 417 as the unit employees' representa-
tives,3 and Local 417 could not thereafter resurrect
its bargaining status." The Respondent, therefore,
was not obligated to recognize or reinstitute a bar-
gaining relationship with Local 417. Accordingly,
we shall dismiss the complaint.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a State of Michigan corporation, is
engaged in providing hospital patient care services in a
number of locations, the only one involved in this case
being in the city of Detroit During each of the years
ending December 31, 1982, and December 31, 1983, rep-
resentative periods, the Respondent in the course of its
operations derived gross revenues in excess of $500,000.
During each of those 12-month periods, in the course of
its business, it purchased and caused to be transported to
its Detroit location goods and materials valued in excess
of $50,000 which were transported and delivered to it di-
rectly from points located outside the State of Michigan.
I find that the Respondent is an employer within the
meaning of the Act
II. THE LABOR ORGANIZATION INVOLVED
I find that Clerical, Technical & Professional Employ-
ees Local 417, OPEIU, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
a Id
9 See Teamsters Local 42 (Grinnell Fire Protection), 235 NLRB 1168
(1978), enfd 615 F 2d 820 (9th Cir 1980)
5 Conkle Funeral Home, 266 NLRB 295 (1983)
' Id
John Ciaramitaro, Esq., and Richard Connolly, Esq., for
the General Counsel.
Robert J. Battista, Esq. (Butzel, Long, Gust, Klein and 3an
Zile), of Detroit, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hear-
ing in this proceeding was held on February 23, 1984, at
Detroit, Michigan, on complaint of the General Counsel
against Samaritan Health Center, Deaconess Hospital
Unit, A Division of the Sisters of Mercy Health Corpo-
ration, Inc. (the Respondent or the Company). The com-
plaint issued on February 6, 1984, upon a charge filed on
April 7, 1983, by Clerical, Technical & Professional Em-
ployees Local 417, OPEIU, AFL-CIO (the Union). The
sole issue presented is whether the Respondent unlawful-
ly withdrew recognition from the Union as exclusive
bargaining agent of its employees in violation of Section
8(a)(5) of the Act. Briefs were filed by both parties.
On the entire record and from my observation of the
witnesses I make the following
This is a very simple case; the essential facts are not
disputed. Local 417, the Charging Party, was for some
years the precisely certified bargaining agent for the Re-
spondent's hospital employees in an unquestioned appro-
priate unit Its last contract covered the period July 1,
1980, to June 30, 1983 By January 1983 a majority of
the represented employees had turned against Local 417;
they decided they did not want that Union to be their
bargaining agent anymore. Of the approximately 130 em-
ployees totaled in the bargaining unit, 77 signed a peti-
tion saying in unmistakable terms they no longer wished
to be represented by Local 417. With this, John Kelly,
the president of the International Union, of which Local
417 is a part, decided that since Local 417 no longer rep-
resented these employees, another local of his-Local
7-would take on that responsibility. On January 27 Ben-
erie Austin, the president of Local 417, wrote to the Re-
spondent, informing it of Kelly's decision to "transfer
. . the members of the bargaining unit . . from .. .
Local 417 . . to . . Local 7." She added to that letter
that, thereafter, the Company should "direct all future
communications concerning wages, hours and working
conditions, including current or pending grievances and
arbitrations to either Lois Finney or to Margaret
Mobley, Chief Steward for the Deaconess Unit of
OPEIU Local 7." Finney was the president of Local 7
and Mobley, formerly chief steward for Local 417, had
been made chief steward for Local 7.
To assure the employees that their change of heart
was being honored, Austin even wrote, that same day, to
each of the employees advising them that "in accordance
with your request and your petition" they would thence-
forth be represented by Local 7.
Austin re-emphasized her message to the Company by
another letter dated March 15 Here she said "Local 417
has transferred the appropriate bargaining unit at Dea-
coness Hospital to Local 7 . . according to the stated
SISTERS OF MERCY HEALTH CORP.
wishes of the majority of those in the bargaining unit."
She also added to that letter that Kelly, the International
president, had approved "such transfer." The letter also
said that because Local 7 had become the `official repre-
sentative for all such bargaining unit employees . . . all
dues monies should be forwarded to that local effective
1/24/83."1
On the basis of this internal union decision to switch
bargaining authority from one local to another , Local 7
then demanded recognition of the Respondent , but was
refused . It filed NLRB charges of illegal refusal to bar-
gain, which were found without merit by the Regional
Director, of course. Not wanting to be left out in the
cold, the International Union then shifted back again,
and gave the bargaining unit back to Local 417. When,
on March 24, Local 417 demanded restoration of its lost
bargaining rights, the Respondent found itself in a quan-
dary. It knew-because so informed by the established
bargaining agent itself-that a majority of the employees
involved had expressly in writing , voiced their desire not
to be represented by Local 417. It knew a counter
demand was being advanced by another union-Local 7.
With the International playing games-as it were-by
moving the bargaining unit from one of its pockets into
another pocket, the Company had no choice but to
throw the question back where it properly belonged, i.e.,
to the employees . At a meeting with the lawyer of Local
7, it advised the Union to file an election petition with
the Board so that the entire issue would be put to rest.
Local 417 even accepted that suggestion and filed such a
petition ., But-for reasons which elude me-Local 417 at
the same time filed a charge saying the Company's refus-
al to restore full representative status to Local 417 was
illegal , a violation of Section 8(a)(5) of the Act. And the
only reason the election did not take place-which
would have brought peace and quiet into the hospital in-
stead of litigation-is' because the General Counsel decid-
ed not to hold it. He issued this complaint instead.
I shall recommend dismissal of the complaint. A per-
fect opening comment on applicable law in this case is a
statement appearing in a notice the Company gave to all
its employees in December 1983 when it changed their
conditions of employment unilaterally because there was
no lawfully established exclusive bargaining agent in the
picture. It said:
It should be understood that unions exist because
the majority of the employees who vote during an
election, cast their ballot in favor of the union. You
will recall that the leadership of Local 417 wrote to
us, twice, stating that they no longer represented a
majority of the employees located at the Deaconess
Unit Given that fact , Samaritan was not in a posi-
tion to recognize 417 any longer without a new
election being held wherein all eligible employees
' The bard once said that in all tragedy there is some humor. In this
case, the humor takes the form of an allegation , in the General Counsel's
complaint, that by failing to forward union dues deducted from the em-
ployees' paychecks during February, which were payable to Local 417
on March 10 , the Respondent committed an unfair labor practice, and
never mind the fact Local 417 had told the Company not to send that
money to it'
1355
could express their opinion, either for or against the
union.
Dismissal of this complaint is dictated by two of the
most fundamental principles of Board law. The first,
built into the heart of the statute since its inception, is
that it is the employees who select a union if they wish
to be represented collectively , and not the union-or the
employer, for that matter-which decides, apart from
their desires, what union shall be the exclusive bargain-
ing agent . It would demean this decision to cite authority
for that basic idea . The second is that when, as a con-
tract is about to expire and the employer has a reasona-
ble doubt as to the union 's continued majority status, it
may lawfully refuse to bargain and insist that the union
again prove its representative status before it can enjoy
exclusive bargaining rights. And it does not matter how
that question be put-either as a good-faith doubt by the
employer or objective evidence to support what could
be called reasonable grounds for doubting. It is enough
that the employer did not act arbitrarily, and just imag-
ine that the employees had changed their minds about
the union. Cf. Terrell Machine Co., 173 NLRB 1480
(1969).
Austin, the president of Local 417 and the General
Counsel's principal witness, tried to discredit the peti-
tions, or whatever written statements they were, which
the employees signed to indicate their rejection of her
local. She gave ambivalent testimony , trying to make the
point that whatever was signed was really not reliable.
She even tried to disown the letter she signed as presi-
dent, at the time of the events, and sent to the Company
telling it of the employees' rejection of Local 417. After
the events, such testimony served only to discredit the
lady. I do not know what was written on those petitions,
for none was placed in evidence. Did the employees
write that they wanted to be represented by Local 7?
But the one thing that is clear is that they unequivocally
rejected Local 417 as the bargaining agent. This case in-
volves refusal to bargain with Local 417, not with Local
7. Therefore , regardless of whatever 'the employees may
have felt with respect to Local 7 at. the time, Local 417
had lost all standing as a bargaining agent in this unit.
Repeatedly, in brief, the General Counsel contends
that the employees only wrote in their petition , that they
wanted to be represented by Local 7, but did not say
they did not want to be represented by Local 417. Were
they saying they wanted to be represented by two
unions? What about the testimony of Benjamin Moles,
the supervisor who was told by a solicitor to signatures
to the petition that the employees were signing because
they were "dissatisfied with their local union?" And
what about the admission by Austin, the president of
Local 7, that if the Company had dealt with Local 417,
she would have claimed no representation rights? The
General Counsel's position hardly merits any consider-
ation.
For 2 months, from January into late March, no one
on behalf of Local 417 went to any of the employees, or
had anything to do with any of these employees at all. It
processed no grievances, it held no meetings , it did not
deal with management . Instead, some of the employees
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who had been stewards of Local 417 became stewards of
Local 7; some of them even wore Local 7 badges at
work.
As stated above, in March a charge was filed accusing
the Respondent of illegality in refusing to bargain with
Local 7. After that charge was dismissed as being with-
out merit-because there was no proof the employees
wanted to be represented by Local 7?-the International
and Austin, still president of Local 417 functioning vis a
vis other companies, decided to have the employees rep-
resented again by that local. It was entirely a decision
made by the higher officers of the Union. Aside from
Austin's testimony that she prevailed upon some employ-
ees to sign something again favoring Local 7, there is no
evidence that a majority of the employees, as distin-
guished from the union officers, desired to be represent-
ed by Local 7 again. Insofar as this record shows, they
still believed Local 417 was no good, in their opinion
When a majority of the employees in a bargaining unit
openly publicize rejection of an old bargaining agent,
and the union informs the employer of the fact, may that
union, some months later, in order to salve the ego of its
officers, by a simple statement reinstate its majority rep-
resentative authority? To ask the question is to answer it.
Compare: Dycus v. NLRB, 615 F.2d 820, 826 (9th Cir.
1980).
On March 24 Local 417 notified the Company in writ-
ing of its intent to renegotiate the about-to-expire con-
tract, and to bargain towards renewal. In a followup
letter dated April 4, Austin told the Company, "I have
been advised by the International to inform you that the
bargaining unit shall not be transferred to OPEIU Local
7." The letter also told the Company to resume paying
dues checked off to Local 417. Again, this was the Inter-
national Union telling the employer it, the International,
had decided who the bargaining agent should be, and
never mind the desires of the employees. To this demand
for resumed recognition, the Company answered, on
April 5, saying, "We have serious doubts as to whether
Local 417 can truly say that it represents a majority of
our employees." The Respondent has since that day re-
fused to bargain with Local 417, while urging it to go to
an election if it wished to become the bargaining agent.
If ever there was a case where the employer can be
said to have had a rational basis for questioning a union's
continued majority status, this is it. It refused to bargain
with Local 417 in April and, admittedly, has held firm to
that position. It had every right to do so. The Company
did not know what the future held. Would there be an-
other election? Would the employees openly, in full ma-
jority, come to the Employer and reverse their position
expressed in January so as to make clear they again
wished to be represented by that Local? To play it safe,
the Company continued to deduct union dues until June
30, 1983, from the willing employees and has since then
kept that money in escrow. It did not change any condi-
tions of employment as established by the contract which
still had a little over 2 months to go. When employees
filed grievances, both before June 30 and thereafter, it
processed them. It insisted, however, that the grievance
forms not be on Local 417 documents, but on company
forms instead as used by nonunion represented employ-
ees. There is much testimony on that subject, but it
would be pointless to belabor it here. The Respondent
admits it did not recognize any Local 417 stewards as
representatives at the grievance conferences, although it
always permitted the grieving employee to have anyone
of his or her choice present during the discussions. All
this was but part and parcel of the overall refusal to
accord exclusive recognition to Local 417.
In December 1983 the Respondent informed all its em-
ployees previously represented by Local 417 that it
would thereafter accord them the same conditions of em-
ployment as the ndnrepresented employees had long
been enjoying. It assured them none would suffer a re-
duction in pay, but some would receive increases. It also
said, in that notice, that all dues deducted up to June 30
would be held to the credit of the employee, until this
litigation ends.
Having found that the Respondent's refusal to contin-
ue recognition of Local 417 in April was perfectly
lawful, it follows that it would go about its business as it
thought best without consulting the Union. I therefore
find nothing improper in its having refused to accept
grievances filed in the name of Local 417 or in its unilat-
eral changes in working conditions in December 1983.
The argument, in support of the complaint, that there
was a presumption of continued majority in April 1983
when the Company refused to bargain with the Union, is
untenable in this situation. It is true that during the life
of a collective-bargaining agreement there is such a pre-
sumption, but it is rebuttable. And it certainly has been
rebutted here. More revealing, the case at bar is directly
disposed of by the recent Board decision in Conkle Fu-
neral Home, 266 NLRB 295 (1983), where a like state of
facts was considered. There, the change of heart among
the employees occurred 5 months after a Board certifica-
tion. The presumption of continued majority during the
first 12 months after a Board election is much more
strong than that which arises towards the end of a 3-year
contract Indeed, there are cases which hold that even a
change of heart voiced by the employees during the cer-
tification year may not suffice to rebut the presumption.
But what the Board relied on more strongly in Conkle
Funeral Home was the fact that 5 months after the certi-
fication issued the certified union wrote to the employer
saying unequivocally that it no longer wished to repre-
sent the employees. They had in fact turned against the
union. This is precisely what happened in this case.
When later, 3 months before the end of the certification
year, the union in Conkle again wrote to the employer
asking it to "reinitiate bargaining," and the company re-
fused, the Board found nothing with that respondent's
conduct.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
2 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
SISTERS OF MERCY HEALTH CORP. 1357
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.