Sprain Brook Manor

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 809 (N.L.R.B. 1975)

SPRAIN BROOK MANOR 809
Henry Book , William Russ and Robert Klein d/b/a
Sprain Brook Manor and Local 1199, Drug and
Hospital Union, RWDSU, AFL-CIO and Local
999, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract . Case 2-CA-13257
July 30, 1975
DECISION AND ORDER
On December 27, 1974, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Teamsters Local 999, Party to the Con-
tract with the Respondent, filed a reply brief.
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.
Unlike the Administrative Law Judge, we would
find that the Respondent Employer violated Section
8(a)(1) and (2) of the Act by recognizing Teamsters
Local 999 and Section 8(a)(3) of the Act by executing
a collective-bargaining agreement containing a
union-security provision with such Union at a time
when it did not represent a majority of the employees
in an appropriate unit.
The facts in the instant case, as set forth more fully
in the Decision of the Administrative Law Judge
herein, are not in dispute. Basically, they are as fol-
lows. Teamsters Local 999 allegedly obtained 12 to
15 authorization cards in person, and 44 to 47 such
cards by mail, from the Employer's employees during
mid-February 1974. After a demand for recognition
by the Teamsters, the Respondent agreed to submit
59 authorization cards to an arbitrator on February
20, 1974, for a binding decision as to the majority
status of the Teamsters among 101 employees of the
Respondent. In a letter to the Teamsters and the Re-
spondent, dated February 21, 1974, the arbitrator
chosen by these parties noted that he had compared
the authorization cards with the employees' W-4
forms and that "the similarity of signatures was veri-
fied to the best of his ability . . . from his own obser-
vation, and not as a handwriting expert." After re-
jecting two unsigned cards and three cards with
printed signatures, the arbitrator concluded that the
cards showed that "a majority of the employees de-
sired representation." Local 1199, RWDSU, which
had conducted an organizational campaign among
the Respondent's employees in early February 1974,
was not a party to the card check.' On February 22,
1974, the Respondent executed a union-security con-
tract with the Teamsters for a unit of 77- employees.
Thereafter, the Teamsters destroyed the authoriza-
tion cards which had been returned to it by the arbi-
trator. To prove that Teamsters Local 999 did not
represent a majority of the Respondent's employees
at any pertinent time, the General Counsel at trial
produced 70 witnesses who were all employed by the
Respondent at the time the Respondent recognized
and contracted with the Teamsters. Of the 70 em-
ployees, 25 testified on direct examination, subject to
cross-examination, that they had never, in any man-
ner, authorized Teamsters Local 999 to represent
them. The parties stipulated that the other 45 em-
ployees to be called by the General Counsel would
testify likewise. A breakdown of the employees who
testified that they did not sign authorization cards is
set forth below as to the recognition unit and as to
the contract unit.
The Recognition Unit
Classification Unit Nonsigners
Kitchen 14 8
Physical Therapy Aide 1 1
Maintenance 5 5
Registered Nurses 14 2
LPN's 10 7
Nurses Aides 56 46
Recreational Aide 1 1
Totals 101 70
The Contract Unit
Classification Unit Nonsigners
Kitchen 14 8
Physical Therapy Aide 1 1
Maintenance 5 5
Nurses Aides 56 46
Recreational Aide 1 1
Totals 77 61
In dismissing the complaint herein the Administra-
tive Law Judge rejected the General Counsel's
"mathematical proof" provided by "70 not-discredit-
ed witnesses ," because , in this view , this was "not the
kind of evidence that suffices to overcome the
arbitrator's determination that Teamsters Local 999
1 Our dissenting colleagues assert that we are interjecting a theory of
contemporaneous organizing activity on the part of the Charging Party.
Teamsters Local 999 allowed such theory to be a part of this case when it
refused the General Counsel's offer to stipulate out of the record evidence
which relates to this issue.
219 NLRB No. 148
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had a majority consisting of valid cards." In support
of his conclusion , the Adminstrative Law Judge
notes that the Respondent would have violated Sec-
tion 8(a)(5) of the Act had it refused to recognize the
Teamsters? However, as the Administrative Law
Judge also notes, the Supreme Court held in Bern-
hard Altmann3 that an employer's "good faith" does
not preclude a finding that the employer violated
Section 8(axl) and (2) of the Act by recognizing a
union which, in fact, represented only a minority of
the employer's employees at the time of the union's
demand for recognition.
In further support of his conclusion, the Adminis-
trative Law Judge notes that the Respondent was
bound by its agreement to submit the authorization
cards to an arbitrator, and that the arbitrator's subse-
quent decision as to majority status of the Teamsters
could not, therefore, be challenged by the Respon-
dent4 unless the decision was clearly repugnant to the
purposes of the Act or unless there was a showing of
fraud, collusion , unfairness , or serious procedural ir-
regularities.' As an additional comment concerning
procedural matters , the Administrative Law Judge
noted that the Board has not allowed a party to
prove that a union was, in fact, a minority union
where the party's failure to follow procedural rules
precluded such proof .6 In this regard, the Adminis-
trative Law Judge stated that "employee rights are
often dependent to some extent on employers,
unions, and the following procedural rules, including
ad hoc rules adopted by agreement between the par-
ties." In other words, the Administrative Law Judge
seems to be saying that, once the Respondent and
Teamsters adopted ad hoc rules and procedures to
resolve the question of the Teamsters majority status,
the Respondent's employees were bound by such
rules and procedures so that no challenge to the
Teamsters alleged majority status could be made.
However, as the Administrative Law Judge noted,
the Board's deferral to an arbitrator's card count is,
in large part, based upon theories of contract or es-
toppel. Such theories are irrelevant to a third party
such as Local 1199, RWDSU, which was not a party
to the card-check agreement between the Respon-
1 The Administrative Law Judge cited N.L.R.B. v. C & S Packing Compa-
ny, 405 F.2d 935 (C A. 9, 1969), in support of this proposition.
a International Ladies' Garment Workers' Union, AFL-CIO (Bernhard-Alt-
mann Texas Corp J v N L. R.B., 366 U .S 731 (1961)
4 The Administrative Law Judge cited Fred Snow, Harold Snow and Tom
Snow d/b/a Snow & Sons, 134 NLRB 709 (1961 ), enfd . 308 F .2d 687 (C.A
9, 1962), in support of this proposition.
3 The Administrative Law Judge cited Spielberg Manufacturing Company.
112 NLRB 1080 (1955), and International Harvester Company (Indianapolis
Works), 138 NLRB 923 (1962), enfd sub nom . Thomas D. Ramsey v.
N.LR.B., 327 F.2d 784 (C.A. 7, 1964), cert . denied 377 U.S. 1003 ( 1964), in
support of this proposition.
The Administrative Law Judge cited N. L.R.B. v . A. J Tower Company,
329 U .S. 324 ( 1946).
dent and the Teamsters, and this is especially so
when, as here, the arbitrator fails to inquire into the
circumstances surrounding the alleged signing of the
cards or into the possible presence of another union
or unions upon the scene' Moreover, as the Admin-
istrative Law Judge noted, the Board in several cases
has held that it is not bound by a neutral party's
authorization card count where it was shown that
particular cards which were counted toward a
union's majority status were, in fact, invalid.' It is
true that in the case at bar no authorization cards
exist which would allow a direct affirmance or denial
by each employee as to whether he or she signed a
particular card. Such conventional proof is not avail-
able here because the cards in question were de-
stroyed by Teamsters, Local 9999 Nonetheless, in
presenting 70 employees who were willing to testify
and be subjected to cross-examination as to whether
they authorized the Teamsters to represent them, the
General Counsel presented the best objective evi-
dence available as to the validity of the cards in ques-
tion and presented the same type of evidence which
has consistently been accepted by the Board as proof
as to the lack of majority status on the part of a
union.1° We are unable to see how the arbitration, to
which the competing union and the individual em-
ployees were not parties, can bar our consideration
of such evidence here, even though the Employer
might be estopped from raising the issue.
Based upon the foregoing, we would find that the
General Counsel has made out a prima facie case that
neither a majority of the Respondent's employees in
the recognized unit nor a majority of the
Respondent's employees in the contract unit author-
Hunter Outdoor Products, Inc, 176 NLRB 449 (1969), enfd. 440 F.2d 876
(C.A. 1, 1971); Allied Supermarkets, Inc -Allied Discount Foods Division,
169 NLRB 927 (1968).
8 The Administrative Law Judge cited Hi Temp Inc., A Division of Beatrice
Foods Co., 203 NLRB 753 (1973), 503 F.2d 583 (C.A 7, 1974); and Hunter
Outdoor Products, supra
9 Member Kennedy also notes the Board 's holding in Sunbeam Corpora-
tion, 99 NLRB 546, 550 (1952), where the Board stated:
This Board has also long recognized that authorization cards are a
notoriously unreliable method of determining majority status of a
union as a basis for making a contract where competing unions are
soliciting cards , because of the duplications which then occur.
Moreover, Member Kennedy points to the remarks made by former Chair-
man Frank W. McCulloch in a speech delivered on October 28 , 1965, to the
Texas Manufacturers Association entitled , "The Policy, the Purpose and the
Philosophy of the NLRB as Revealed in Decision Trends," wherein the
former Chairman stated.
There has been a spate of comment too about the reliance upon
authorization cards to establish a union's majority. Now everyone
knows, and my public assertions to that effect have been cited far and
wide, that honest and free elections are a better test of employee choice
than authorization cards, with all their known frailties.
10 Cf. Wallace Metal Products, Inc, 199 NLRB 819, 827 (1972); Dixie
Cup, Division of American Can Company, 157 NLRB 167 (1966); Trend Mills.
Inc, 154 NLRB 143, 144 (1965); /mco Container Company of Harrisonburg,
a Division of Consolidated Thermo-Plastics Company, 148 NLRB 312, 314
( 1964); Hudson Dispatch, 68 NLRB 115, 117 (1946).
SPRAIN BROOK MANOR 811
ized Teamsters, Local 999, to represent them; that
the burden therefore shifts to the Respondent to
come forward to establish majority status of the
Teamsters; and that, in the absence of such proof by
the Respondent," a violation of Section 8(a)(1), (2),
and (3) of the Act occurred when the Respondent
recognized Teamsters Local 999, and executed with
it a collective-bargaining agreement containing a
union-security provision at times when such Union
did not represent a majority of the Respondent's em-
ployees in an appropriate unit. Accordingly, we
would find the violations alleged and issue an appro-
priate order.12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Henry Book, William Russ and Robert Klein d/b/a
Sprain Brook Manor, Scarsdale, New York, their
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Assisting or contributing support to Local 999,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization, by recognizing such labor
" We disagree with our dissenting colleagues ' position which is, in effect,
that the Respondent has refuted the General Counsel 's prima facie case, by
showing that the arbitrator was presented with 54 valid authorization cards,
thus evidencing a majority status by the Teamsters among the Employer's
bargaining unit employees . The parties executed a contract in a unit com-
prised of only 77 employees . Assuming that the 24 employees who were
excluded from the unit all signed cards for the Teamsters, only 30 employ-
ees of the 54 Teamsters card signers remain . These 30 employees would not
constitute a majority of employees in the contract unit of 77. Thus there has
been no showing by the Teamsters that they represented a majority of em-
ployees in the bargaining unit. On the other hand , as we have noted, 61
employees in the contract unit of 77 testified, either in person or by stipula-
tion, that they did not sign a Teamsters authorization card.
In addition, 70 employees of the Employer' s total of 101 employees so
testified. We are unable to perceive why our dissenting colleagues apparent-
ly credit the testimony of I I of the 70 witnesses presented by the General
Counsel, but do not credit the other 59 who testified that they signed no
authorization card for the Teamsters. In any event, it is clear that to accept
the result reached by our dissenting colleagues would be to preclude those
most directly concerned, the employees involved, from effectively proving
their actual desires as to union representation . In light of the Teamsters
destruction of the authorization cards, the testimony of individual employ-
ees as to whether they actually signed a Teamsters authorization card is the
best objective evidence available as to the authenticity of the cards.
Chairman Murphy joins her colleagues in finding that , in the highly un-
usual circumstances of this case , the General Counsel has presented a prima
facie case that the authorization cards relied on by Respondent in recogniz-
ing Teamsters were invalid . Hence, a violation of Sec . 8(axl), (2), and (3) by
Respondent has been established . See International Ladies' Garment Work-
ers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N. L. R B. 366 U.S.
731 (1961). The Chairman wishes specifically to note , however, that the
violation found may well have been innocently engaged in by the Employer,
who appears merely to have accepted a card count made by a well -qualified
arbitrator.
12 See The Drackeit Company, 207 NLRB 447 (1973).
organization as the exclusive representative of any of
its employees for the purpose of collective bargaining
at a time when there exists a real question concerning
representation, or when such labor organization does
not represent the majority of employees in an appro-
priate unit, or in any other manner.
(b) Giving effect to, or in any manner enforcing,
the collective-bargaining agreement executed with
the aforesaid labor organization on, to wit, February
22, 1974, or to any modification, extension, renewal,
or supplement thereto, or any superseding agree-
ments, or to checkoff authorization cards executed
pursuant to such agreements, unless and until said
labor organization has been certified by the Board as
the exclusive bargaining representative of such em-
ployees; provided, however, nothing herein shall re-
quire Respondent to vary or abandon any wage,
hour, seniority, or other substantive features of its
relations with its employees which have been estab-
lished in the performance of such agreements or to
prejudice the assertion by employees of any rights
they may have thereunder.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement in conformity with Section 8(a)(3) of the
Act, as amended.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Local 999, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the representative of its employees for the purpose
of collective bargaining unless and until said labor
organization has been duly certified by the Board as
the exclusive representative of such employees.
(b) Reimburse all present and former employees
for all initiation fees, dues, or other moneys paid or
checked off since February 22, 1974, pursuant to any
renewal, modification, or extension thereof, or pur-
suant to any checkoff authorizations executed before
the date of compliance with this Order.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
reimbursement due under the terms of this Order.
(d) Post at its plant in Scarsdale, New York, cop-
ies of the attached notice marked "Appendix." 13
Copies of said notice, on forms provided by the Re-
13 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Continued
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director for Region 2, after being duly signed
by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by Respondent for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBERS FANNING and PENELLO , dissenting:
We do not believe the General Counsel has met his
burden of proving by a preponderance of the evi-
dence that Respondent violated Section 8(a)(1), (2),
and (3) by recognizing and bargaining with the
Union.
The sole issue in this case is whether Respondent
violated the Act by recognizing and bargaining with
Teamsters Local 999 at a time when that Union al-
legedly had not been duly selected by the employees
as their exclusive representative. The General Coun-
sel alleged that Local 999 was not a majority repre-
sentative and to prove that fact introduced the testi-
mony of 70 employees who denied that they had
signed authorization cards for Local 999 or had in
any other manner authorized it to represent them.
Respondent presented evidence that, after Local
99914 requested recognition on the basis of a claimed
majority of authorization cards, it and Local 999
agreed that the cards would be submitted to an arbi-
trator along with W-4 forms from the Respondent's
personnel records which contained employee signa-
tures, that the arbitrator would make a determination
as to the Union's majority status, and that such de-
termination would be binding on the parties, a stan-
dard and accepted arrangement approved by this
Board and the courts on countless occasions. Ac-
cording to a stipulation of the parties to this case, 59
cards out of a unit of 101 employees were submitted
to Arbitrator Wildebush'5 who checked the cards
against the W-4 forms, rejecting two because they
bore no signatures and three because the signatures
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
14 Local 999 produced evidence that two of its business agents visited
Respondent's premise three times, passing out authorization cards to em-
ployees on two of those occasions, and that they obtained about 12 to 15
cards in person , and the rest were sent to them in the mail . Local 999 also
explained that it no longer had the cards submitted to the arbitrator for it
does not as a matter of policy keep such cards after recognition and a
contract are achieved.
15 Joseph Frederick Wildebush is a member of the American Arbitration
Association , the Federal Mediation and Conciliation Service , the New York
State Board of Mediation , and the New Jersey State Board of Mediation.
were printed, and issued a written determination that
based on his observation of the similarity of signa-
ture "the cards did in fact show that a majority of
employees desired representation." Upon receipt of
the arbitrator's determination, Respondent recog-
nized Local 999 and bargained for and executed a
contract covering a unit of 77 employees.
We quite agree with our colleagues that the Gener-
al Counsel's evidence established a prima facie case
of lack of majority status on the part of Local 999,
and that Respondent therefore had the burden of
coming forward with evidence to explain away or re-
fute that case . This, we believe, it has done.
Respondent's evidence is that the arbitrator was
presented with cards from a majority of employees
authorizing Local 999 to represent them for purposes
of collective bargaining, which cards, he, an experi-
enced and reputable arbitrator, found to bear the sig-
natures of employees in the unit. That evidence at
the very least suggests that the testimony of some of
the employees, testimony neither credited nor dis-
credited by my colleagues, nor by the Administrative
Law Judge, was mistaken or based on faulty recollec-
tion. Conversely, it is of course possible that the arbi-
trator failed to detect invalid signatures, and that the
employee testimony is entirely accurate and reliable.
As the Administrative Law Judge noted, there could
have been forgery, on the one hand, or erroneous
recollection or even false testimony, on the other
hand. Either possibility is, however, entirely specula-
tive, and, accepting all the testimony and evidence at
face value, we believe the Respondent has met its
burden of coming forth with evidence in refutation
of the General Counsel's case .16 As the burden of
16 The General Counsel conceded that his burden was to prove that Local
999 did not have a majority in either the unit of 101 employees for which
recognition was demanded and received , or in the 77-employee unit for
which a contract was signed . Obviously, if he had proven that a majority in
the larger unit had not authorized Local 999 to represent them , he would
have also carried his burden as to the smaller unit. Our colleagues , appar-
ently accepting the view that Respondent has come forward with evidence
in refutation of the General Counsel 's prima facie case as to the larger unit,
find that it has not done so in the smaller unit. They say that the 24 employ-
ees excluded from the larger unit may be assumed to be among the 54 for
whom cards were presented to the arbitrator, leaving only 30 in that 77-
employee unit as employees for whom cards were also presented . However,
of the 70 employees presented by the General Counsel, the names of I I do
not appear on the stipulation setting forth the employees in the contract unit
(four more names are similar to but not precisely the same as those of
employees who testified that they did not sign cards). Thus, the testimony of
at least I I employees who are stipulated to be part of the 101 -employee unit
but not in the 77-employee unit is that they did not sign cards for Local 999.
Accordingly , our colleagues ' assumption that 24 of the 54 cards were signed
by employees excluded from the 77-employee unit is contrary to the testi-
mony they would otherwise accept as true . At best, they can assume that 13
of the employees excluded from the contract unit were among those em-
ployees for whom cards were presented to the arbitrator . Subtracting 13
from the 54 cards submitted to the arbitrator leaves 41 cards from employ-
ees in the 77-employee contract unit. The situation is thus the same for both
units. The General Counsel has presented testimony from a majority of
employees denying they had signed authorization cards for Local 999. Re-
spondent has introduced evidence that an arbitrator was presented with
SPRAIN BROOK MANOR
proving his case by a preponderance of the evidence
always remained with the General Counsel" and we
do not believe his evidence preponderates in favor of
finding that Local 999 was a minority union at the
time it was recognized by Respondent unless one in-
dulges in impermissible speculation , speculation, for
example, that Local 999 perpetuated a fraud upon
the arbitrator, we would dismiss the complaint."
It seems to us that henceforth any employer who
accepts an arbitrator's or neutral third party's deci-
sion with respect to the majority status of a union
will act at his peril.
cards from a majority of unit employees which he found to be valid cards.
17 The General Counsel has not attacked the competency of the arbitrator
to determine the issue submitted to him by the parties. Indeed , he specifical-
ly disclaimed any reliance upon a theory that contemporaneous organizing
activity by the Charging Party made it improper for the Respondent and
Local 999 to resolve the question of representation without the participation
of the Charging Party. His sole theory is "that Local 999 did not have a
majority." Our colleagues , however, seek to interject that issue into the case.
The Charging Party filed its charge a month after the events in issue.
is It is of course possible , but not proven , that dismissal of the complaint
would impose a union not selected by the employees as their representative
However, they have the right to deauthorize any membership obligation
which may be included in the contract and to vote the union out at the end
of the contract if they are dissatisfied with the representation they have been
given.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or contribute support to
Local 999, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by
recognizing or contracting with such labor orga-
nization as the exclusive representative of our
employees for the purpose of collective bargain-
ing, at a time when there exists a real question
concerning representation, or when such labor
organization does not represent a majority of
our employees in an appropriate bargaining
unit, or in any other manner.
WE WILL NOT give effect to our February 22,
1974, agreement with Local 999, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or to any
renewal, modification , or extension thereof, un-
less and until said labor organization has been
duly certified by the Board as the exclusive rep-
resentative of our employees; but nothing herein
shall be construed to require that we vary or
813
abandon any existing term or condition of em-
ployment.
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, except to the extent that such rights
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment as authorized in Section
8(a)(3) of the Act, as amended.
WE WILL withdraw and withhold all recogni-
tion from Local 999, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the collective-bargaining
representative of our employees, unless and until
said labor organization has been certified as
such by the Board.
WE WILL reimburse all present and former em-
ployees, with interest, for any initiation fees,
dues, or other moneys paid or checked off on
and after February 22, 1974, pursuant to the
agreement with Local 999, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or to any renewal,
modification, or extension thereof.
HENRY BOOK , WILLIAM Russ AND ROBERT
KLEIN d/b/a SPRAIN BROOK MANOR
DECISION
STATEMENT OF THE CASE
MELVIN J . WELLES, Administrative Law Judge: This case
was heard at Greensburgh , New York, and New York City,
on various dates between September 11 and October 29,
1974, based on charges filed March 21, 1974, and amended
June 5 , 1974, and a complaint issued May 23, 1974, alleg-
ing that Respondent violated Section 8(a)(1) and (2) of the
National Labor Relations Act, as amended .' Briefs have
been filed by the General Counsel , the Respondent, and
Local 999.
Upon the entire record in the case , including my obser-
vation of the witnesses , and upon consideration of briefs, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATIONS INVOLVED
Respondent is a co-partnership , and is engaged in oper-
i The first 2 days of the hearing were conducted by Administrative Law
Judge Joseph I. Nachman . When he became unavailable , I was assigned to
the case . The parties agreed to accept the record already made , except for
the testimony of two witnesses, whose testimony was stricken.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ating a nursing home and providing related services at its
place of business at 77 Jackson Avenue , Scarsdale, New
York. During the past year , Respondent received gross rev-
enues in excess of $500 ,000, and during the same period, it
purchased goods and services valued in excess of $3,000
from points outside the State of New York. I find, as Re-
spondent concedes , that it is an employer engaged in com-
merce within the meaning of Section 2 (6) and (7) of the
Act. The Charging Party, Local 1199, Drug and Hospital
Union, RWDSU, AFL-CIO, herein called Local 1199, and
the "Party to the Contract," Local 999 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , herein called Local 999, are labor
organizations within the meaning of Section 2 (5) of the
Act.
11. THE ISSUE AND THE FACTS
The sole allegation in this case is that Respondent recog-
nized and executed a contract with Local 999 at a time
when Local 999 did not represent a majority of
Respondent's employees. The facts show that, after Local
999 requested recognition on the basis of an asserted ma-
jority of authorization cards, Respondent and Local 999
agreed that the cards would be submitted to an arbitrator
and that his determination would be binding. The parties
stipulated that 59 cards were submitted to the arbitrator,
Joseph Frederick Wildebush,2 out of a "unit" of 101 em-
ployees; and that, on February 20, 1974, Wildebush
checked these cards against the Form W-4's submitted to
him, rejecting two because they bore no signatures, and
three because the signatures thereon were printed. On Feb-
ruary 21, 1974, he issued a written determination that "the
cards did in fact show that a majority of the employees
desired representation," based on his examination of them,
and stating also that "The similarity of signatures was veri-
fied to the best of his ability. This statement is made from
his own observation, and not as a handwriting expert "
Thereafter, Respondent and Local 999 executed a contract
in a unit comprising 77 employees, 24 less than the number
against which Arbitrator Wildebush checked the cards.
The parties agreed that the General Counsel had the bur-
den of proving "no majority" of both the 77 and the 101
figures , but obviously if the General Counsel carried the
burden as to the 101, in the circumstances of this case, he
would have carried it as to the 77 as well. There is no
dispute as to the foregoing facts.
To prove that Local 999 did not represent a majority, the
General Counsel presented the testimony of 70 witnesses,
all employees of Respondent at the critical time, each of
whom was asked whether she signed an authorization card
for Local 999 or otherwise authorized Local 999 to repre-
sent her; to which questions, each responded that she had
not. Actually, only 25 of these 70 witnesses took the stand,
but the parties stipulated that the other 45 would each re-
spond "no" to the two questions being asked. As I stated
2 Wildebush is a member of the American Arbitration Association, the
Federal Mediation and Conciliation Service , the New York State Board of
Mediation , and the New Jersey State Board of Mediation.
on the record , the fact that 45 of the witnesses did not
testify orally could not, and will not , have any effect or
bearing on my resoulution of this case.
The only other pertinent facts are ( 1) that Local 999 no
longer has the authorization cards submitted to the arbitra-
tor, pursuant to its policy of not keeping cards once recog-
nition and a contract are achieved , and (2) that Local 999
did in fact have two representatives at Respondent 's nurs-
ing home on three occasions , passing out cards and solicit-
ing signatures . According to Union Agent Anthony De-
Franco , he and the other union agent obtained from 12 to
15 cards in person, and the rest were sent to them by mail.3
Viewed simplistically , and that is the way the General
Counsel views this case ,4 the fact that 70 witnesses testified
that they did not sign authorization cards for Local 999 or
in any other manner authorize Local 999 to represent them
establishes , unless at least 20 of these witnesses are discred-
ited , that Local 999 did not represent a majority of
Respondent's 101 employees on February 21, when Arbi-
trator Wildebush checked the cards , or on February 22,
when Respondent recognized Local 999 and signed a con-
tract with it. In that posture , the conclusion that Respon-
dent violated Section 8 (a)(1) and (2) of the Act by recog-
nizing a majority union follows inescapably under
International Ladies ' Garment Workers' Union, AFL-CIO
[Bernhard-Altman Texas Corp.] v. N.L.R. B., 366 U.S. 731
(1961).5
Stated otherwise, the General Counsel asserts that the
only question before me is one of credibility , and further
asserts that there is no conceivable basis for discrediting
enough of its witnesses to bring the total of "non-signers"
below 51.6
i The General Counsel in his brief asserts that the testimony of union
organizer DeFranco discloses that he and another organizer , Yannucci, only
spoke with about 45 employees. I do not agree . DeFranco testified that the
two organizers made three visits to the Company in which they handed out
cards, following an initial visit when no cards were distributed . He gave
numbers-totaling about 45-with respect to the first two of these latter
three visits , in response to the General Counsel 's questions on cross-exami-
nation, but was not asked about the third. Nor did the numbers he gave
purport to be more than rough estimates . There is thus no basis on the
record for concluding that Local 999's organizers did not speak with or
distribute cards to many more than the 45 employees the General Counsel
claims the evidence shows.
4 No criticism is intended-the issue is difficult and the General Counsel's
position may be correct.
s The General Counsel in his brief adverts to testimony that the organiza-
tional activity by the Charging Party, Local 1199, at the Company, preceded
the recognition of Local 999. The testimony concerning the activities of
Local 1199 was very unclear, and I make no finding with respect to it,
particularly because at the hearing the General Counsel explicitly agreed
that "for purposes of this case, . . . it is as if 1199 never existed .. , " that
his theory of the case was solely that "Local 999 did not have a majority."
"with no reference to the fact that 1199 was even on the scene." The Gener-
al Counsel having taken this theory out of the case , I would not consider it
even were the evidence referred to by the General Counsel clearly suppor-
tive of it
6 I agree that "discrediting" is not a feasible method of resolving this case,
and for that reason not only accepted the stipulation that 45 witnesses need
not be called , as they would testify the same as the 25 who were called, but
strongly urged it upon a somewhat reluctant General Counsel. For "discred-
iting" any particular witnesses on demeanor would not establish that the
particular witnesses did sign a card . As to the 25 who testified in person,
some were cross-examined extensively by Respondent and by Local 999.
Although as to a few of them it might be said that elements of their testimo-
ny on cross-examination suggested a lack of candor, the bulk of them were
either not cross-examined at all, leaving the record as to them the same as
SPRAIN BROOK MANOR 815
Approaching the case from Respondent's and Local
999's point of view, however, could, just as simplistically,
lead to the opposite conclusion. Thus, Respondent and Lo-
cal 999 having agreed to submit the authorization cards to
an arbitrator, who concluded that 54 out of the 101 were
valid, they argue that Respondent was obliged to recognize
Local 999 at that point, and did so in "good faith," and
had it not done so, would have violated Section 8(a)(5) and
(1) of the Act. Fred Snow, Harold Snow and Tom Snow
d/b/a Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d
687 (C.A. 9, 1962). And had Respondent attempted to
challenge Arbitrator Wildebush's determination, it would
not have been permitted to do so. N.L.R.B. v. C & C Pack-
ing Company, 405 F.2d 935 (C.A. 9, 1969).
111. DISCUSSION
Assuming arguendo that the General Counsel did
"prove" that Local 999 did not represent a majority of
Respondent's employees, so as to bring into play the prin-
ciple of Bernhard-Altmann, that does not end the matter.
For a number of other principles stemming from the stat-
ute, and from Board and court law interpreting the statute,
seem, in the circumstances of this case, to conflict with the
principles of Bernhard-Altmann. To begin with, Snow &
Sons, as Local 999 and Respondent correctly state, does
provide that a company violates Section 8 (a)(5) of the Act
if it reneges on an agreement to recognize a union if an
arbitrator determines that union represents a majority of
his employees. And C & C Packing, supra, does preclude a
company from challenging the determination of majority
by the arbitrator. The Snow & Sons principle, as amplified
by C & C Packing, is, in a sense , an outgrowth of Spielberg
Manufacturing Company, 112 NLRB 1080 (1955), where the
Board held in effect that it would not go behind the factual
determinations of an arbitrator, and would therefore stay
its own hand when an arbitration had been held, absent
"fraud , collusion , unfairness , or serious procedural irregu-
larities," or unless "the award was clearly repugnant to the
purposes and policies of the Act." International Harvester
Company (Indianapolis Works), 138 NLRB 923, 127 (1962),
enfd. sub nom. Thomas D. Ramsey v. N. L. R. B., 327 F.2d
784 (C.A. 7, 1964), cert. denied 377 U.S. 1003 (1964).
It is true that Snow & Sons and its progeny are based, in
large part at least, on estoppel grounds, on the theory that
an employer cannot renege on his agreement, but that an
outsider such as another union, or the employees them-
selves, are free to attack the recognition by conventional
means , and for an appropriate period. (This "period"
would be within 6 months of the recognition, for Sec. 10(b)
would preclude any attack thereafter.) It is also true that
the employer's "good faith" in recognizing Local 999
would not, in and of itself, preclude the applicability of
Bernhard-Altmann, as the Supreme Court explicitly states
therein.?
And, with respect to Spielberg, the "arbitration" here
may well not be the kind of arbitration contemplated
therein by the Board, because there was no contractual
relationship between Respondent and Local 999, and be-
cause the employees, whose rights are directly involved
here, neither agreed to nor were represented at the arbitra-
tion. The General Counsel also suggested at the hearing
that its proof-70 employees testifying that they did not
sign a Local 999 authorization card-establishes a prima
facie case of "fraud," in that it demonstrates that at most
31 of the 54 cards found valid by Arbitrator Wildebush
were in fact valid, ergo, that there must have been 23 inval-
id cards and therefore Local 999 did in fact perpetrate a
"fraud" upon the arbitrator.
There is much to be said for each of these opposing
arguments . The principles espoused in the various argu-
ments seem to clash head on, which would not be true if
either was without plausibility or merit.8 Having said this,
however, does not quite answer the question before me,
which of the two arguments should prevail, and whether
other considerations, some practical, and some policy, in-
cluding the fact that the authorization cards presented to
Mr. Wildebush no longer exist, should tip the scales one
way or another.
Although I realize that many things turn on a "matter of
degree," for purposes of determining the legal issues in this
case , I propound the following hypothetical case, which
differs from the instant case only in degree.
Suppose, for example, the General Counsel, in a case
otherwise identical to this, presented 51 witnesses who tes-
tified they did not sign cards, whereas the arbitrator had
found that the union had 51 valid cards out of 101 employ-
ees. Without knowing (as we do not know here) which 51
employees purportedly signed cards, there is of course no
necessary conflict between 50 of the witnesses and the
arbitrator's conclusion with respect to 50 of the cards. If all
51 witnesses are telling the truth, then either one of the 51
cards must have been a forgery, or the arbitrator's mathe-
matics were faulty. If the arbitrator's count was correct,
and there were no forgeries, then one of the witnesses must
have been mistaken; he may have lied, or forgotten, or just
not understood. The difficulty in resolving that hypotheti-
cal case is obvious, for there is no one-to-one conflict in
evidence; there is no single individual, that is, whose card
is in evidence and who testifies he did not sign it. The
conflict lies solely in the totals. For an 8(a)(2) violation to
be found, it is necessary to credit all 51 witnesses, and
conclude that one of the cards was therefore invalid. Con-
versely, for the union to have had a valid majority, it is
only necessary to discredit I of the witnesses-for 50 no
"votes" create no conflict with the 51 yes "votes." But on
what basis could I discredit 1 out of the 51 witnesses? How
could I single out I of the 51 and conclude that this is the
one that is lying, or has forgotten, or did not understand?
The answer is obvious; I could not. (See -fn. 6, supra.)
Although the numbers are different in the case at bar,
violated Sec 8(a)(5) by declining to recognize Local 999 after Wildebush's
with the 45 whose "testimony" was stipulated , or, having been cross-exam - decision.
fined, did not evince any basis for discrediting them
8 Arguably , if the arguments on each side were in precise equilibrium,
7 The General Counsel does not contest Respondent 's "good faith." and Respondent would prevail, on the theory that the General Counsel carried
he agreed at the hearing that, with nothing more , Respondent would have the burden of establishing a violation
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the problem is the same. For 50 of the General Counsel's
witnesses could be telling the truth, could be correct in
testifying that they did not sign cards, without destroying
the Union's majority. But if any number from 51 through
70 are correct, then the Union did not have a majority, and
either from 4 to 31 of the cards found valid by Arbitrator
Wildebush were invalid, or the arbitrator miscounted to
that extent.
In the hypothetical case, it is possible to reason that the
likelihood of one forgery, or the arbitrator having mis-
counted, is probably less than that of one employee forget-
ting, or not understanding, or even lying. And I would
think, in those circumstances, the policy of giving credence
to an arbitrator's determination and of permitting a meth-
od chosen by the parties to resolve the question concerning
representation raised by the Union's demand for recogni-
tion should prevail over the possibility that a union one
short of majority status in a unit of this size might be en-
trenched for as long as 3 years. With the larger numbers
here present, it is hard to say that the same reasoning ap-
plies. That 20 employees are lying or mistaken, or have
misunderstood, is much less likely than that 1 would. But
that 20 cards were forged is also much less likely than that
1 was.'
To dismiss the 8(a)(2) complaint here because of the dif-
ficulty of deciding the factual question whether the union
represented a majority would leave Local 999 as the exclu-
sive representative of the employees, at least until they, or
another union, could appropriately (under Board represen-
tation case law principles) file a decertification or represen-
tation petition, respectively, and might be keeping a union
that did not have a majority as the employees' representa-
tive. But that, in my opinion, should not shock the con-
science. Thus, as far back as 1946 the Supreme Court, in
N.L.R.B. v. A.J. Tower Company, 329 U.S. 324 (1946), re-
fused to permit untimely challenges in a Board election
even though the result of the election may well have been
different had the late challenge been permitted, as it was
based on the allegation that the voter in question was not
even an employee of the company. Thus, employee rights
are often dependent to some extent on employers, unions,
and the following of procedural rules, including ad hoc
rules adopted by agreement between the parties. It is true
that Tower involved Board rules and procedures governing
Board-conducted elections, and in that sense this case is
quite different. But in Tower, unlike here, the question of
majority raised by the employer was susceptible to easy
resolution, had such resolution been permitted, and did not
present the kind of difficulty that exists here because of the
lack of any one-to-one conflict. Furthermore, other Board
principles, that of Snow & Sons, supra, and Spielberg, supra,
are at least analogous to the Board procedures in represen-
tation cases that the Supreme Court held controlling in
Tower in rejecting the employer's right to show that the
union did not have a majority. Indeed, recognition of a
union that represented no one at all could not, because of
Section 10(b) of the Act, be attacked after 6 months had
gone by. Local Lodge No. 1424, International Association of
Machinists, AFL-CIO; and International Association of Ma-
chinists, AFL-CIO [Bryan Mfg. Co.] v. N.L.R.B., 362 U.S.
411 (1960). It is true that this latter invulnerability is statu-
torily mandated. But the A.J. Tower and C & C Packing
Co. cases were not, yet the possibility of imposing a minori-
ty union upon the employees in those cases was, as already
noted, not considered significant enough to warrant going
behind Board procedures, or those agreed to by the parties.
In sum , the combination of reasons stemming from cases
such as Snow & Sons, C & C Packing, A.J. Tower, and
Spielberg that favor setting to rest, and not permitting an
attack upon, the relationship established here following Ar-
bitrator Wildebush's determination, are, in my opinion,
more compelling than the reasons advanced for ignoring
all these factors, and adopting the simplistic approach of
having the 70 not-discredited witnesses carry the day. I do
not, in short, regard the General Counsel's "mathematical
proof" as the kind of evidence that suffices to overcome
the arbitrator's determination that Local 999 had a majori-
ty consisting of valid cards.
It is true , as the General Counsel urges, that had Local
999 not destroyed the authorization cards after it had ob-
tained recognition and a contract, we might have had the
kind of one-to-one confrontation that would permit a more
conventional resolution of this case. For, in those circum-
stances, the General Counsel presumably would not be
putting on witnesses comprising a majority of the employee
complement to testify that they did not sign a card, but
would prevail by putting on 4 witnesses to testify that their
cards, 4 of the 54, were forged, providing, of course, they
were believed.10
Perhaps the Board could, and should, as Respondent's
counsel suggested at the hearing, enunciate a rule applica-
ble to all cases where recognition is obtained by authoriza-
tion cards that the cards be kept for the 10(b) 6-month
period, at the peril of having such recognition attacked as
unlawful by the kind of evidence proffered by the General
Counsel here. But at the moment no such rule exists. And
the uncontroverted testimony of Local 999' s business
agent, to the effect that the Union does not, as a matter of
policy, keep cards once recognition and a contract are ob-
tained, serves to preclude any inference of chicanery or
fraud in the destruction of the cards.
I fully realize, as the above discussion should make evi-
dent, that my conclusion here (if sustained by the Board
and the courts, of course) might be leaving Local 999 as the
employees' bargaining representative despite the strong
possibility that Local 999 did not represent a majority of
them when it was recognized. But, aside from the fact that,
as A.J. Tower suggests, that should not shock the con-
science , a decision by me that Respondent here did violate
Section 8(a)(2) would, for practical purposes, not achieve a
different result, for by the time the case, in that posture,
wended its way through the Board, the court of appeals,
and the certiorari procedures of the Supreme Court, even
assuming the General Counsel's position prevailed at every
level, we would have approached the time when the Union
9 With the arbitrator having found 54 valid authorizations, the probability 10 Obviously, in such circumstances, the cards themselves would have to
of his miscounting is virtually nil be examined , perhaps handwriting experts called to testify, etc.
SPRAIN BROOK MANOR 817
could be unseated , if that is the employees ' desire, by con-
ventional means. II
This is not a simple case. And my conclusion has not
been an easy one to reach . Balancing the conflicting poli-
cies that bear on the situation is a task , in the final analysis,
for the Board. I can only present my views, for what bene-
fit they may be to the Board, and indicate that to me the
balance tips ever so slightly in favor of permitting the rec-
ognition by Respondent of Local 999, based on the
arbitrator's determination , to stand , as against the testimo-
ny of the 70 witnesses who were presented by the General
Counsel to testify that they did not authorize Local 999 to
represent them .12 Accordingly, I conclude that the Respon-
dent has not violated Section 8(a)(1) and (2) of the Act by
recognizing and executing a contract with Local 999.
[Recommended Order for dismissal omitted from publi-
cation.]
12 My determination is strictly limited to the precise circumstances of this
case , and the kind of evidence presented by the General Counsel. Cases
such as Hi-Temp, Inc., A Division of Beatrice Foods Co., 203 NLRB 753
(1973), and Hunter Outdoor Products, Inc, 176 NLRB 449 (1969), enfd. 440
F.2d 876 (C.A. I, 1971), cited by the General Counsel, are, in my view,
distinguishable , for in each of those cases it was specifically established that
particular cards counted toward the union 's majority were invalid , because
the specific individuals had signed cards for another union In short, I am
not holding that the Board cannot or should not ever go behind the means
selected by the parties for determining majority representation . I conclude
11 To the extent that a majority of the employees might wish to escape only that the presumption of regularity of the arbitrator 's determination
from the contractual obligation to pay dues to Local 999 , they could, of here has not been overcome by the General Counsel's parade of witnesses-
course , deauthorize the Union from having a union shop . by, that is, his "mathematical proof."