Washington Manor Nursing Center

National Labor Relations Board - Board Decisions

Jun 11, 1974

211 N.L.R.B. 324 (N.L.R.B. 1974)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington Manor, Inc., doing business as Washington
Manor Nursing Center (North) and National Union
of Hospital and Nursing Home Employees, Local
1199H, Retail, Wholesale and Department Store
Union, AFL-CIO. Case 9-CA-7856
June 11, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On December 28, 1973, Administrative Law Judge
Sidney D. Goldberg issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings, and conclusions2 of the Administrative
Law Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Washington
Manor, Inc., doing business as Washington Manor
Nursing Center (North), Dayton, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The General Counsel argued that the Administrative Law Judge erred
in granting the Respondent's motion for severance of this case from Case
9-CA-7857 with which it had originally been consolidated . Contrary to the
General Counsel , we find that this ruling involved an exercise of the
Administrative Law Judge 's discretion , and that the Judge did not abuse his
discretion in ordering severance . See Richmond v. Weiner, 353 F.2d 41, 44
(C.A. 9, 1965), cert. denied 384 U.S. 928, rehearing denied 384 U.S. 994;
Federal Rules of Civil Procedure , Rule 42(b); Section 10(b) of the Act; and
Section 102 .35, Rules and Regulations , Series 8, as amended.
The General Counsel also argued that the Administrative Law Judge
erred in not relying on a notice to employees dated June 8, 1972, in reaching
his conclusion that the Respondent violated Section 8(aX5) and (1). This
notice was offered at the trial "as background ," and paraphrased contract
language to advise employees how to withdraw from the Union . We concur
with the Administrative Law Judge's determination to forego relying on this
notice , but for different reasons. The General Counsel now seeks to use the
notice to find a violation of the Act when he only introduced it "as
background ." This cannot be done since it goes beyond an attempt to "shed
light" on matters occurring within the Section 10(b) period , and thus
conflicts with the Supreme Court's decision in Bryan Manufacturing Co. v.
N. L. R. B., 362 U .S. 411 (1960).
2 We specifically disavow any reliance on the Administrative Law
Judge 's extrapolations of "Estimated percentage of union support" as set
forth in sec. 4(b)(8) of his Decision.
3 Respondent's request for oral argument before the Board is denied as
the record and briefs adequately present the issues and positions of the
parties.
DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: This
case, involving one of two nursing homes operated by
Washington Manor, Inc., in and near Dayton, Ohio, raises
the question of whether Respondent was justified in
claiming a good-faith doubt of the Union's representative
status and refusing to bargain with it upon the expiration
of the first contract following the union's certification. A
similar question was raised concerning Respondent's
similar action with respect to the Union at its other nursing
home in the area . The Regional Director ordered the two
cases consolidated for hearing and issued, pursuant to
Section 10(b) of the National Labor Relations Act, as
amended (the Act), a single consolidated complaint.'
Respondent answered and, when the issues raised by the
answer came on for trial before me at Moraine, Ohio, on
September 18, 1973, it moved that the cases be severed. In
view of the factual differences between the situations at the
two installations, the motion to sever was granted, but,
because the same persons were involved as parties and
witnesses , the trial proceeded with respect to both cases.
Consistent with the order of severance, however, separate
Decisions are being issued with respect to each of these
nursing homes, and they have been reentitled in accord-
ance with that order and with stipulations at the trial. This
Decision deals with the installation at 3109 Campus Drive,
in Dayton, called Washington Manor Nursing Center,
North.
With respect to this installation, the complaint, as
amended at the trial, alleges that, after an election held
November 13, 1970, National Union of Hospital and
Nursing Home Employees, Local 1199H, Retail, Whole-
sale and Department Store Union, AFL-CIO (the Union)
was, on August 27, 1971, certified as the collective-
bargaining representative for
all employees employed at the respondent's Washing-
ton Manor Nursing Center (North) located at 3109
Campus Drive, Dayton, Ohio, including nurses aides,
orderlies, housekeeping employees, maids, cooks, kitch-
en employees, dietary employees, the activities thera-
pist, the beautician, maintenance employees, and the
receptionist, but excluding licensed practical nurses, the
dietician, registered nurses, doctors, and other profes-
sional employees, guards and supervisors as defined in
the Act;
that on or about June 6, 1972, the employer and the union
entered into a collective-bargaining agreement terminating
May 15, 1973; 2 that on March 3 the Union served notice
of its desire to terminate or modify the contract and,
commencing April 4, requested the Company to meet for
bargaining, but that the Company, then and since, has
unlawfully refused to bargain with the Union. The
complaint also alleges that, on April 17, the Company
1 Issued August 21, 1973 , on charges filed June 21, 1973.
2 All dates hereinafter are 1973 unless otherwise specified.
211 NLRB No. 24
WASHINGTON MANOR NURSING CENTER (NORTH)
unlawfully interfered with, coerced, and restrained its
employees in their exercise of self-organizational activities
by the contents of a notice posted on the employee bulletin
board.
The Company answered, admitting the background facts
alleged in the complaint and its refusal to bargain with the
Union, but denying that it had interfered with employees'
self-organizational activities or that it had otherwise acted
unlawfully.
The issues so raised came on for trial before me as set
forth above. All parties were represented; they were
afforded an opportunity to adduce evidence, cross-exam-
ine witnesses , and argue upon the facts and the law. Briefs
filed by the General Counsel and by counsel for Respon-
dent have been considered.
For the reasons hereafter set forth in detail, I find that,
although Respondent did not directly interfere with its
employees' exercise of self-organizational rights, it cannot
be found that Respondent had a good-faith doubt, based
on objective considerations, concerning the status of the
Union as the collective-bargaining representative of the
above-described employees and I find, therefore, that its
refusal to bargain with the Union violated Section 8(a)(5)
of the Act.
Upon the entire record herein,3 and considering the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACT
1. The parties
Washington Manor, Inc., an Ohio corporation, operates
two nursing homes in the Dayton area. Its operation of the
installation involved in this case is conducted under the
name Washington Manor Nursing Center, North. It admits
that its annual revenues exceed $100,000; that it annually
imports materials valued at more than $50,000; and that it
is an employer engaged in commerce as that term is
defined in the Act. I so find.
Local 1199 of the Retail, Wholesale and Department
Store Union, AFL-CIO, is a nationwide organization of
hospital and nursing home employees. It is divided, for
organizational purposes, into many "affiliates" covering as
much territory as several States, and each of them is
designated by a different initial or abbreviation following
the local number . Dayton is in the tristate area consisting
of Ohio, Indiana , and Kentucky and the affiliate covering
that area is designated by the initial "H" following the
local number "1199." The complaint alleges that Local
1199H is a labor organization, the answer admits this
allegation , and the 1972 collective-bargaining contract
signed by Respondent is with Local 1199H.
I find that the Union is a labor organization.
2. Background and chronology
The contract between Respondent and the Union
provides that employees shall not be required to be
members of the Union, but that those employees who, 60
3 Typographical errors in the transcript of proceedings have been
corrected by order dated December 14, 1973, and, as hereafter noted,
325
days after the execution or effective date of the contract,
are still members of the Union, all employees who
thereafter become members of the Union, and all newly
hired employees who join the Union within 60 days after
the commencement of their employment shall maintain
their union membership as a condition of their employ-
ment during the term of the contract.
The contract also includes a form entitled "Wage
Assignment and Dues Deduction Authorization" and it
provides that the employer will deduct, from the wages of
any employee who delivers an executed copy of the form to
it, the amount of that employee's union dues and pay it to
the Union. The Union is required to supply the Employer,
60 days after the execution or effective date of the contract,
with the names of its members and to keep the Employer
informed of all changes in its roster.
The contract term was from May 15, 1972, to May 14,
1973, and automatically for yearly periods thereafter in the
absence of notice of intention to modify or terminate it by
either party not more than 90 days or less than 60 days
prior to its expiration date. In accordance with this
termination provision, the Union, by letter dated March 3
to Les Pointer, Respondent's administrator, gave notice of
its intention to negotiate a new agreement and requested a
meeting with his representative "as soon as possible."
David Jones, the Union's area organizer, testified that he
thereafter tried, in person and by telephone, to arrange for
a meeting to negotiate a new contract but that he was
unsuccessful in these efforts.
3. The issues
The General Counsel contends that Respondent's efforts
to persuade its employees to abandon their support of the
Union were unlawful; that the Union's status as represent-
ative of a majority of the employees is presumed to have
continued, and that Respondent, not having proved that
there were objective considerations which justified its claim
of a good-faith doubt concerning the Union's status, was
obligated to bargain with it.
Respondent contends that the notices to its employees,
alleged by the complaint to constitute restraint and
coercion, were statements of fact, argument and opinion
protected by Section 8(c) of the Act; that there were
objective considerations, including the high rate of turno-
ver and an admitted lack of majority membership in the
Union, that justified it in entertaining a good-faith doubt
that the Union represented a majority of the employees in
the unit; and that, therefore, it was not obligated to
bargain further with the Union.
4. Discussion and conclusions
a. Interference, restraint, and coercion
One of the principal contentions of the General Counsel
is that Respondent's conduct in interfering with its
employees' rights of self-organization and in coercing and
restraining them in their exercise of those rights precludes a
finding that it entertained a good-faith doubt concerning
Respondent's revised version of its Exhibit 12 has been substituted for the
exhibit received at the trial.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's status as collective-bargaining representative.
Accordingly, it becomes necessary, at the threshold of this
discussion, to examine the evidence concerning this
interference, restraint, and coercion, both as it affects the
validity of Respondent's claim to a good-faith doubt and
as it supports the independent violations of the Act alleged
in the complaint.
The complaint alleges that on or about April 17, 1973,
Administrator Pointer posted "antiunion literature on the
bulletin board . . . requesting employees to refrain from
joining the union." In support of this allegation, the
General Counsel introduced a notice dated April 17 and
posted April 18. This three-page notice is addressed to "all
employees" and is divided into three topics labeled "Union
matters ," "State of Business ," and "The Future," each
having several paragraphs. Under "Union matters," the
notice describes the contract and states that it will expire
May 15; that the contract does not require union
membership; that all employees, whether members of the
Union or not, receive the same pay, benefits, and union
representation; that, of the 66 employees in the bargaining
unit , only 24 are "currently dues paying employees of the
union" and that this is less than half of the employees
eligible for union membership; that during the contract
term union membership has never reached 50 percent and
during most months it has been considerably less and,
finally, that upon the expiration of the contract the
Company would have a choice of signing a new contract or
that it might, after negotiations, fail to reach agreement.
The section devoted to "State of Business" makes no
reference to the Union but is not optimistic and the section
"The Future" states that decisions will be made upon
economics and without regard "for the promises of outside
influences," stating that they may not be able to keep the
promises they make.
The General Counsel argues that this notice is antiunion
and that, taken as a whole, it constitutes restraint and
coercion violative of Section 8(a)(1) of the Act. Taken as a
whole, there can be no doubt that it is neither prounion nor
strictly neutral; if antiunionism alone were the test, such
finding would be justified. The applicable test, however, is
not whether the notice is antiunion, but whether it
constitutes restraint and coercion violative of the Act.
During the course of the trial, Respondent made a motion
to dismiss this allegation of the complaint for lack of
evidence. The General Counsel argued that the notice was
an attempt to induce the employees to abandon their
support for the Union by misstating the number of
employees in the unit and stating that the Union did not
have majority support. Decision on the motion was
reserved and the General Counsel directed to brief the
point. The General Counsel's brief merely sets forth the
4 Darlington Manufacturing Company v. N.L.R.B., 397 F.2d 760 (C.A. 4,
1968), and Fairmont Foods Company v. N.LR.B., 407 F.2d 828 (C.A. 4,
1969). The Board decision in the Fairmont case , sub nom. U-Tote M of
Oklahoma, Inc., 172 NLRB 228, refers to an employer 's statement that the
employees did not need a union against a background of flagrantly coercive
statements and activity.
5 Another notice, dated May 9, 1973, was also received in evidence,
although there is no allegation in the complaint for which it could constitute
proof . This notice , dated after Respondent had refused to bargain with the
Union , informs the employees that Respondent , doubting that the Union
facts; his argument-is general and the authorities cited in
its support4 are also couched in very general terms.
Examination of this notice shows that it is largely factual in
nature and the record does not show that any statement is
false . The statement on April 17 that there were 66
employees in the bargaining unit is supported by the table,
set forth below, showing this same number in it as of April
1; the statement in the notice that only 24 of these
employees "are currently dues paying members" is
disputed, but only to a minor extent, by the information in
the same table that, as of April 1, there were 26 employees
having checkoff authorizations on file. The notice shows
Respondent's distaste for the Union, but its tone barely
rises to animosity and it cannot be said that it exceeds the
limits of views, argument, or opinion protected by Section
8(c) of the Act and does not, in my opinion, constitute
interference, restraint, or coercion violative of Section
8(a)(1) of the Act.5
b. The refusal to bargain
(1) The facts
The facts concerning Respondent's refusal to bargain
with the Union are simple and not in dispute. Pointer
testified that about March 5 he received the Union's letter
notifying him that the contract would expire on May 14
and requesting a meeting, as soon as possible, to negotiate
a new agreement . He reported its receipt to Thomas E.
Duffy, a vice president of Washington Manor, Inc., and
they had a number of conversations over the following
weeks concerning the apparent strength of the Union as
reflected by the dues-deduction authorizations on file. On
April 6, Pointer and Duffy met with Paul Moody, president
of Washington Manor, Inc. Pointer had with him a graph
showing the Union's "deduction strength" compared with
the "total membership eligibility." It showed, according to
Pointer, that fewer than 50 percent of the employees in the
bargaining unit were members of the Union. They decided
to postpone any decision on the subject. Pointer and Duffy
continued to discuss the subject at frequent intervals6 and,
on May 4, Pointer gave Duffy his latest figures on the
number of employees in the unit and the number of union
members . Pointer suggested that Respondent "might want
to consider a refusal to bargain on the basis that it
appeared that the union did not hold a majority of
employees as members." On May 7, when Pointer received
three additional dues-deduction authorizations, he report-
ed their receipt to Duffy, revised his statistical analysis
accordingly, and reviewed his recommendation that
Respondent refuse to bargain with the Union. His
recommendation was approved and the Union was
notified, on May 8, that Respondent had taken the position
represents a majority of the unit employees, does not plan to sign an
agreement with it . The issue of whether this notice was also violative of Sec.
8(a)(1), assuming it to have been fully litigated , is closely tied to the
principal issue in this case, i.e., whether Respondent had objective support
for its claimed good-faith doubt concerning the Union 's representative
status, and its independent resolution appears to be unnecessary.
6 Duffy, the administrator of Washington Manor Nursing Home
(South), was Pointer's superior and they conferred frequently by telephone
on many matters.
WASHINGTON MANOR NURSING CENTER (NORTH) 327
that the Union did--not represent a majority of the
employees in the bargaining unit and would not meet for
negotiations . Respondent concedes that it has not, since
that time, bargained with the Union and contends that it is
not under a legal obligation to do so.
Although Pointer testified that his only knowledge of
union membership came from the dues-deduction authori-
zations on file with his office, he testified that he also based
his recommendation on several additional factors: the
result of the original election which was "very close"; the
amount of turnover between the election and the execution
of the collective-bargaining contract; his continuous
statistical record of dues-checkoff authorizations as com-
pared with employees in the bargaining unit during the
entire period of the contract; and the Union's effort,
during the preceeding several months, to sign up additional
employees. Respondent now contends that, in addition to
the foregoing factors, reliance for its refusal to bargain may
also be placed upon the fact that there were, at the time,
indications that the Union was not functioning7 and
reports that the Union had admitted that it did not
represent a majority of the employees. Because of their
relative simplicity and their dependence upon a few facts,
these two additional contentions are discussed first.
(2) The Union's inactivity
This claim, that the Union's lack of activity prior to the
expiration of the contract could justify a good-faith doubt
concerning its representative status , was advanced by
Respondent's counsel in the course of his cross-examina-
tion of witnesses presented by the General Counsel. 'Mere
is authority for the contention, if supported by evidence,
and the record contains substantial testimony on the
subject that was adduced before Pointer testified that one
of his reasons for doubting the Union's majority status was
its energetic activity in seeking authorizations from the
employees. Despite this conflict, Respondent's counsel still
argues that , because there were no written grievances, and
few oral ones, never a full complement of delegates, and
only three meetings "of substance" during the period,
Respondent could, on this basis, justifiably have a good-
faith doubt of the Union' s status . Weller testified that there
were only a few grievances and that he handled all of them
orally with Pointer; that there was always at least one
delegate; that he posted notices of at least 4 meetings; and
that he recalled holding meetings in both April and May
attended by up to 15 employees. The May meeting is
established by the motel record and by the testimony of
Ada Pate, a witness called by Respondent, who testified
that she attended it. Weller also testified that during April
and May, in addition to the formal meetings, he met
employees on the street outside the nursing home. I find
that this evidence of the Union's activity, considered with
Pointer's failure to include this element as one of those
contributing to his recommendation, requires that I reject
counsel's argument that the Union's inactivity justified a
good-faith doubt concerning the Union's representative
status.
(3) Union admission of lack of majority
The argument is based entirely upon the testimony of
Ada Pate, who testified that Weller, at the final union
meeting in May at the Dayton Inn, asked those present to
obtain additional authorization cards because the Union
did not represent a majority. Weller testified that he did
not recall making this statement that the Union did not
represent a majority but conceded that he might have done
so. It is unnecessary to decide whether Weller did make
this statement because Ms. Pate testified that, in her
subsequent discussion with Pointer about the meeting, she
did not report any such statement to Pointer and,
therefore, Respondent could not have considered this
!statement in forming its doubt^of the Union's representa-
tive status. Moreover, Respon ent's brief fixes this meet-
ing, on the basis of the motel record, as having occurred on
May 10 and Ms. Pate testified that she talked with Pointer
the following day. Pointer testified, however, that it was on
May 7 that he recommended that Respondent refuse to
bargain with the Union and that it was on the same day
that his recommendation was accepted and the decision
made. Finally, this decision was communicated to the
Union by counsel's letter dated May 8. From the foregoing
it appears, and I find, that Respondent's decision not to
bargain with the Union was not based, in whole or in part,
upon a belief that the Union had admitted that it did not
represent a majority of the employees in the unit.
(4) The basis for Respondent's "good-faith doubt"
The factors upon which Pointer testified he relied, in
making his recommendation that Respondent refuse to
bargain with the Union, all contributed to his conclusion
that there was doubt of the Union' s status as representative
of a majority of the employees in the unit. He testified that
the started with the closeness of the result in the original
election, then considered the turnover between the election
and the signing of the contract, the Union's effort to sign
up additional members, and the relationship between the
number of dues-deduction authorizations on file and the
,number of employees in the unit.
(5) The applicable rule for decision
There is no dispute concerning the rule of decision
applicable to situations similar to that in this case. It is
most clearly stated by the Board in Terrell Machine
Company, 173 NLRB 1480,8 as follows:
It is well settled that a certified union, upon
expiration of the first year following its certification,
enjoys a rebuttable presumption that its majority
representative status continues.' This presumption is
designed to promote stability in collective-bargaining
relationships, without impairing the free choice of
employees.2 Accordingly, once the presumption is
shown to be operative, a prima facie case is established
that an employer is obligated to bargain and that its
1 Celanese Corporation ofAmerica , 95 NLRB 664, 671-672.
2 /d
7 While the considerable evidence taken on this point will be discussed,
the contention is obviously inconsistent with Pointer's testimony that his
recommendation was partly based upon the Union's extraordinary activity.
8 Enfd 427 F.2d 1088 (C.A. 4, 1970), cert denied 398 U.S. 929 (1970).
The same standard was recently reaffirmed by the Board in The National
Cash Register Company, 201 NLRB 1034.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to do so would be unlawful. The prima facie
case may be rebutted if the employer affirmatively
establishes either (1) that at the time of the refusal the
union in fact no longer enjoyed majority representative
status,3 or (2) that the employer's refusal was predicat-
ed on a good-faith and reasonably grounded doubt of
the union's continued majority status. As to the second
of these, i.e., "good faith doubt," two prerequisites for
sustaining the defense are that the asserted doubt must
be based on objective considerations4 and it must not
have been advanced for the purpose of gaining time in
which to undermine the union.5
3 "Majority representative status" means that a majority of
employees in the unit wish to have the union as their representative
for collective-bargaining purposes. Id
4 See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB 480
(TXD); N.LR.B v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5,
1966), enfg . 147 NLRB 997. And cf. United States Gypsum Company,
157 NLRB 652.
5 C & C Plywood Corporation, 163 NLRB 1022; Bally Case and
Cooler, Inc, 172 NLRB 1127.
After correctly summarizing the foregoing rule, Respon-
dent's brief argues that "it has presented sufficient evidence
to rebut the presumption and to establish good faith doubt"
and that the burden of proof is upon the Union to show that
it "has a majority." It also argues that the "evidence clearly
establishes that the majority of the employees in the bar-
gaining unit . . . were not union members and did not
support the union." Despite this latter statement, however,
all of Respondent's evidence was directed toward proving
that it had a good-faith doubt concerning the Union's status
as the representative of a majority of the employees in the
unit . There is no evidence in this record upon which
Respondent can validly argue that it has established in fact
that, on May 7, 1973, the Union was not the representative
of the employees in the unit .9
(6) The closeness of the election and turnover
among employees
It is clear that the Union's victory in the election was a
close one; at the election held November 13, 1970, there
were 27 ballots cast for the Union and 24 against it, and
the Union, therefore, was supported by 53 percent 10 of the
employees who voted.
As stated above, the collective-bargaining contract
executed on June 6, 1972, contained a provision permitting
employees to have their union dues checked off by
Respondent and, by June 12, there were 28 such authoriza-
tions on file as compared with 69 employees in the
bargaining unit . While these figures show that only 40
percent of the employees were actually union members, it
would be superficial to conclude that these 28 members
measure the totality of the Union's support. From this
figure , however, Respondent argues that the turnover of
it Compare GA F Corporation, 195 NLRB 169, where it appeared that the
employer had been given a copy of a decertification bearing the names of a
majority of the unit employees.
10 The precise figure is 52 94 percent. All percentages hereafter , unless
otherwise noted , are rounded to the nearest two-digit number
11 Enforcement denied 359 F.2d 799 (C.A. 7, 1966).
12 Printers Service, Inc, 175 NLRB 809, 812 , enfd . 434 F.2d 1049 (C A. 6,
employees between the election and June 12 had dissipated
the Union's representative status . This argument must be
rejected. The Board has ruled, with court approval, that
turnover among employees cannot, by itself, be used as the
basis for a belief that the Union has lost its support since it
is presumed that, absent evidence that would justify a
contrary conclusion, new employees will support the
Union in the same ratio as those whom they have replaced.
In Laystrom Manufacturing Co., 151 NLRB 1482,
1484-85,11 the Board wrote:
Employee turnover standing alone does not provide
a reasonable basis for believing that the Union had lost
its majority since the prior election. The Board has long
held that new employees will be presumed to support a
union in the same ratio as those whom they have
replaced.? There is no rebuttal of that presumption
here, and no independent evidence from which the
inference may be drawn that the new group of
employees replaced union adherents or that they
supported the Union less strongly than the old group.
Indeed, the Respondent adduced no competent and
probative evidence to establish that any employees, new
or old, no longer wished to be represented by the
Union.
7 John S. Swift Company, Inc, 133 NLRB 185, enfd 302 F.2d 342
(C A. 7); National Plastic Products Company, 78 NLRB 699, 706, affd.
175 F 2d 755 (C.A. 4). Cf. Small Tube Products, Inc, 134 NLRB 867,
affd. 319 F.2d 561 (C A. 3).
and it has since reiterated that position. 12
In N.L.R.B. v. The Little Rock Downtowner, Inc., 414
F.2d 1084 (C.A. 8, 1969), cited and relied on in Respon-
dent's brief, the court wrote, on this subject, at page 1091:
The respondent and the Board stipulated to the high
turnover in company personnel since the union was
certified. However, employee turnover alone does not
provide a reasonable basis for concluding that a union
has lost its majority status. N.LR.B. v. John S. Swift
Co., 7 Cir., 1962, 302 F.2d 342, 345; N.L.R.B. v.
National Plastic Products Co., 4 Cir., 1949, 175 F.2d
755, 759; N.L.R.B. v. Small Tube Products, Inc., 3 Cir.,
1963, 319 F.2d 561, 563. Here, there was no independ-
ent evidence from which it may have been inferred that
respondent's new employees did not support the union.
From the foregoing, it follows that Respondent could not
properly rely on mere turnover as justification for a "good
faith doubt" concerning the Union's status as the collec-
tive-bargaining representative of its employees in the unit
and there is no evidence to justify a departure from the
Board's rule stated above. Accordingly, I find that the
Union was supported, on June 12, 1972, by the same
percentage of the employees as that disclosed by the vote
in the Board election,13 and that the 40-percent member-
ship on that date connotes the support of the same
1970); Massey-Ferguson, Inc., 184 NLRB 640, enfd . 78 LRRM 2289 (C A 7,
1971); The National Cash Register Company, 201 NLRB 1034.
13 While the percentage of employees who had filed checkoff authoriza-
tions on June 12 is less than a majority of all the employees in the unit, the
Union's victory in the election, attained by a majority of the votes cast, was
,also a manifestation of action by less than a majority of all the employees in
the unit This point is further discussed hereafter.
WASHINGTON MANOR NURSING CENTER (NORTH) 329
percentage of the employees , i.e., 53 percent , as that which
manifested its support of the Union in the election.
(7) The Union 's effort to sign up additional
members
Reference has been made to the inconsistency between
Respondent's argument that the Union had lapsed into
inactivity and Pointer's testimony that the Union's activity
in seeking new members was one of the considerations
which justified his doubt that it represented a majority of
the employees in the unit. Both Jones and Weller testified
that they made continuous efforts to sign up additional
members and that they regarded such efforts as necessary
to protect their majority representation in view of employ-
ee turnover. Pointer's testimony on this subject, however,
was closely related to his continuing statistical survey of
the relationship between the number of employees in the
unit and the number of checkoff authorizations on file. I
find that the Union's activity was a normal one and that it
cannot be regarded as an objective consideration that
could justifiably contribute to a good-faith doubt of the
Union's representative status.
(8) The percentage of employee-members of the
Union
Pointer testified that, from the very beginning of the
contract term, he kept a record of the comparison between
the number of employees in the unit and the number of
dues-checkoff authorizations on file and that it was
principally on these figures that he relied in making his
recommendation that the Respondent refuse to bargain
with the Union for a new contract. He also testified that
these figures, in revised form, were supplied to Respon-
dent's counsel for use in the trial of this case. During the
trial there were received in evidence, at the request the
parties, several documents reflecting the names and total
number of employees in the unit at various times and there
is considerable testimony, cross-examination, and argu-
ment in the record concerning the accuracy of the
information contained in these documents. One of these
documents, however, represents the final analysis and
refinement of all those which led up to it. This document
was prepared by Respondent's counsel on the basis of
other material in the record: it shows, as of June 12, 1972,
as of the first day of each month thereafter to and
including May 1, 1973, and as of May 15, 1973, the number
of employees in the bargaining unit and the number of
those employees who had executed checkoff authoriza-
tions. The other parties have had ample opportunity to
examine the basic data supporting these figures and have
interposed no objection to them.14 The Union conceded
14 At the close of the trial there was discussion concerning the accuracy
of the figures on Resp Exh 12, a schedule showing the comparison, on
certain dates , between the number of employees in the unit and the number
of dues-checkoff authorizations on file with Respondent Respondent's
counsel agreed to prepare a new version of this exhibit and the other parties
were given 15 days from receipt of a copy of the revised exhibit to file any
application concerning it The revised exhibit was subsequently filed with
me, with a certificate of service on the other parties dated October 5, 1973
No application has been filed by any other party concerning this exhibit
and, accordingly, the revised version has been placed in evidence,
superseding the one introduced at the teal
that all of its members in Respondent's employ in the unit
signed checkoff authorizations and that it delivered them
to Respondent. It follows, therefore, and I find, that this
schedule (Respondent's Exhibit 12 as revised) accurately
shows the number of union members among Respondent's
employees in the unit on the dates set forth therein.15
This schedule shows, as Pointer testified his continuing
survey disclosed to him, that at no time during the term of
the collective-bargaining contract were there checkoff
authorizations on file from a majority of the employees in
the unit, but that the percentage varied between 31 and 47.
It is on the basis of these figures, as objective considera-
tions, that Respondent contends that it was entitled to
entertain a good-faith doubt that the Union was the
collective-bargaining representative of a majority of the
employees in the unit. But this testimony and this
contention disclose Respondent's basic error in reaching its
conclusion not to bargain with the Union; it equates union
support with union membership. It is, however, union
support which is the true test of majority representation.
The Board's rule on this point, as set forth in Terrell
Machine Co., supra, 1481, is as follows:
a showing as to employee membership in, or
actual financial support of, an incumbent union is not
the equivalent of establishing the number of employees
who continue to desire representation by that union.6
There is no necessary correlation between membership
and the number of union supporters since no one could
know how many employees who favor union bargain-
ing do not become or remain members thereof.
Accordingly, the Trial Examiner's finding here that on
July 3, only 41 of the 90 employees in the unit were
dues-paying members does not justify his conclusion
that on that date the Union did not represent a
majority of the Respondent's employees.
6 Untied Aircraft Corporation, supra (TXD), N L R B v Gulfmont
Hotel Company, supra
and the rule was recently applied in The National Cash
Register Company, supra.
In determining whether there were objective considera-
tions sufficient to justify a good-faith doubt concerning the
Union's representative status, Respondent was obligated to
consider more than the number of union members in the
unit at any particular time. It should also have taken into
consideration the relationship between the Union's majori-
ty vote in the election and the number of checkoff
authorizations at the beginning of the contract term. It
could not, with objectivity, disregard the remarkable
similarity between the number of checkoff authorizations
filed and the number of votes for the Union by shifting the
basis for determining majority representation to the total
i5 Undisputed testimony shows that checkoff authorizations executed by
newly hired employees were not delivered to Respondent until the
completion of the employee's 60-day probationary period and that the
figures in the schedule showing the total number of employees in the unit
include probationers A footnote to the schedule, however, states that the
number of existing checkoff authorizations on each date is based on their
date of execution rather than their date of filing with Respondent Since the
revised schedule was prepared more than 60 days after the last date shown
thereon, it appears that any imbalance resulting from this time lag has been
erased
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of employees in the unit and ignore the fact that a
substantial number of eligible voters failed to vote. It could
not, therefore, regard the Union's support as identical with
its membership. A similar situation, with the same
argument, was before the Board in Gulfmont Hotel
Company, 147 NLRB 997, enfd. 362 F.2d 588 (C.A. 5).
Although in that case the number of employees in the unit
on a month-to-month basis did not appear, the election
had resulted in a 111-106 victory for the union at a time
when there were 224 employees in the unit. During the 10
months prior to the company's determination that the
union no longer represented a majority of the employees,
there were between 64 and 74 checkoff authorizations in
effect. Rejecting the employer's reliance on the number of
checkoff authorizations in effect as its justification for
entertaining a good-faith doubt of the union's majority
representation status , Trial Examiner Boyls wrote, at pages
1001-2:
... the fact that less than a majority have authorized
such checkoffs is immaterial to the issue of majority
status . Employees, for various reasons unconnected
with their desire to have a union represent them, may
fail to execute checkoff authorizations. There may be
some who prefer, as a matter of principle, to pay their
financial obligations in person; there may be others
who prefer to decide when and if they can afford to
spare the money for dues and fees; and there may even
be some who are willing to vote for and accept union
representation but who decide to be free riders and
enjoy the expected benefits of representation without
paying for them at all. Accordingly, although the
voluntary signing of checkoff authorizations by a
majority in the unit may be considered as evidence of a
union's majority status, the converse is not true. The
fact that a majority in the unit do not sign such
authorizations has no bearing on the majority issue.
This statement was adopted by the Board, and the court
of appeals, enforcing the Board's Order, wrote (362 F.2d at
591, 592):
No one knows how many employees who favored the
unions had decided not to authorize the company to
deduct union dues or how many who favored union
bargaining were not even members of the unions.
• s s
The flaw with the respondent's reasoning here is that
there is no necessary connection between the checkoff
list and the number of union supporters. There was no
compulsory checkoff... .
The same point was recently repeated by the Board in The
National Cash Register Company, supra.
Respondent's schedule, therefore, is useful but incom-
plete . However, a practicable basis for estimating union
support can be derived by applying, to Respondent's
figures of union membership , the relationship between
such membership on June 12 and the manifestation of
union support shown in the election. As found above, the
40-percent membership on June 12 may properly be
regarded as the equivalent of the 53 percent union support
shown in the election. To determine the extent of union
support, as contrasted with union membership, Respon-
dent should have extended its schedule to include an
additional column, applying this 53 to 40 ratio to each of
the figures showing the percentage of union membership.
These two columns would have given Respondent the
following information:
% of Est . %
Empl. on of Union
Date Checkoff Support
1972
6/12 40 53.00
7/1 45 59.62
8/1 42 55.65
9/1 44 58.30
10/1 43 56.97
11/1 36 47.70
12/1 33 43.72
1973
1/1 31 41.07
2/1 35 46.37
3/1 47 62.27
4/1 39 51.67
5/1 38 50.35
5/15 38 50.35
From these figures it appears that, on or about March 5,
when Pointer received the Union's request for bargaining,
his survey, if properly adjusted to show union support,
would have informed him that, as of March 1, the Union
was supported by 62.27 percent of the employees in the
unit; that after April 6 when, he testified, he "up-dated" his
figures, they would have shown that the Union was still
supported by 51.67 percent and thereafter, on May 1 and
15, that it was still supported by 50.35 percent. These
figures , therefore, would have shown him that the
percentage of membership, alone, would not constitute the
"objective considerations" upon which a good-faith doubt
may be founded. Requiring Pointer and Respondent to
recognize the difference between union membership and
union support does not, in my opinion, place an unfair
burden upon them.. Pointer testified that, from the
beginning , he inaugurated and maintained the statistical
survey of the relationship between the number of union
members and the total number of employees in the unit
and it is not improper to hold him to the results of his own
investigation . Moreover Respondent had the assistance of
specialized labor counsel throughout the period 16 prior to
concluding that it would not bargain with the Union.
From all of the foregoing evidence, I find that Respon-
dent did not have, on the basis of objective considerations,
WASHINGTON MANOR NURSING CENTER (NORTH)
a good-faith doubt concerning the Union's status as
collective-bargaining representative of the employees in the
unit and that its refusal to bargain constitutes a violation of
Section 8(a)(5) and (1) of the Act.
5. The effect of the unfair labor practices upon
commerce
The activities of Respondent, set forth in findings of fact
2 and 4, occurring in connection with its operations
described in finding of fact 1, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
6. The remedy
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the purposes of the Act.
Having found that Respondent, by refusing to recognize
and bargain with the Union as the collective-bargaining
representative of nurses aides, orderlies, housekeeping
employees, maids, cooks, kitchen employees, dietary
employees, the activities therapist, the beautician, mainte-
nance employees, and the receptionist employed by it,
committed an unfair labor practice, I shall recommend
that it recognize and bargain with the Union as the
representative of those employees and embody, in a written
contract, any agreement reached with the Union.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. At the time of the activities set forth in the Decision,
Les Pointer and Thomas E. Duffy were officers and
supervisors of Respondent within the meaning of Section
2(11) of the Act and acted as its agents.
4. All employees employed at the Respondent's Wash-
ington Manor Nursing Center (North) located at 3109
Campus Drive, Dayton, Ohio, including nurses aides,
orderlies, housekeeping employees, maids, cooks, kitchen
employees, dietary employees, the-activities therapist, the
beautician, maintenance employees, and the receptionist,
but excluding licensed practical nurses, the dietician,
registered nurses, doctors, and other professional employ-
ees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Since November 13, 1970, and down to date, the
16 Although counsel argued, and attempted to prove, that it was not until
shortly before May 7, 1973, that he was retained to advise Respondent, I
find that he was, throughout the contract year, Respondent's advisor in
matters relating to the Union and this collective-bargaining contract
17 In the event no exceptions are filed as provided by Sec 102 46 of the
331
Union has been the exclusive collective-bargaining repre^
sentative of Respondent's employees in the unit described
in Conclusion of Law 4, above.
6. By failing and refusing, since May 7, 1973, to
bargain with the Union as the collective-bargaining
representative of the employees in the unit described in
Conclusion of Law 4, above, Respondent has committed
an unfair labor practice within the meaning of Section
8(a)(5) of the Act.
7. By the conduct described in Conclusion of Law 6,1
Respondent has interfered with, coerced, and restrained
employees in the exercise of rights guaranteed in the Act
and has committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
8. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
on the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 17
Respondent, Washington Manor, Inc., doing business as
Washington Manor Nursing Center (North), Dayton,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with National Union of Hospital
and Nursing Home Employees, Local 1199H, Retail,
Wholesale and Department Store Union, AFL-CIO, as the
collective-bargaining representative of employees in the
unit described as follows:
All employees employed at the respondent's Washing-
ton Manor Nursing Center (North) located at 3109
Campus Drive, Dayton, Ohio, including nurses aides,
orderlies, housekeeping employees, maids, cooks, kitch-
en employees, dietary employees, the activities thera-
pist, the beautician, maintenance employees, and the
receptionist, but excluding licensed practical nurses, the
dietician, registered nurses, doctors, and other profes-
sional employees, guards and supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, or to engage in concerted
activities for the purpose of collective bargaining and other
mutual aid or protection, or to refrain from any and all
such activities, except insofar as membership in a labor
organization may be required pursuant to a collective-
bargaining contract not inconsistent with Section 8(a)(3) of
the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, meet and bargain with National Union
of Hospital and Nursing Home Employees, Local 1199H,
Rules and Regulations of the National Labor Relations Board, the findings,
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
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail, Wholesale and Department StorelUnion , AFL-CIO,
as the exclusive representative of all employees in the
unit described in paragraph 1(a), above, and, if any
understanding is reached, embody it in a signed agreement.;
(b) Post at its nursing home at 3109 Campus Drive,
Dayton, Ohio, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms provided by
the Regional Director for Region 9, after being duly signed
by its representative, shall be posted by it immediately
upon receipt thereof , and be maintained by it for 6q
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by it to insure that
said notices are not altered , defaced , or covered by any
other material.
(c) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
The allegations of the complaint , insofar as not found by
the Decision to be violative of the Act, are hereby
dismissed.
is 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 Orden
of the National Labor Relations Board" shall read "Posted Pursuant to a'
Judgment of the United States Court of Appeals Enforcing an Order of thel
National Labor Relations Board."
APPENDIX
excluding licensed practical nurses, the dietician,
registered nurses , doctors, and other professional
employees, guards and supervisors as defined in the
Act;
that we have been, and are, required by the National Labor
Relations Act to bargain with it for those employees; and
that, when we refused to bargain with it, we had no good
reason to doubt its status as such representative.
In accordance with that Decision, and to assure our
employees that we will not interfere with their rights under
the Act, we hereby state that:
WE WILL, upon request, bargain with the said labor
organization about the wages, hours, and working
conditions of all employees represented by the said
labor organization and, if any agreement is reached, we
will embody it in a written contract.
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, or to engage
in concerted activities for the purpose of collective
bargaining and other mutual aid or protection, or to
refrain from any and all such activities, except insofar
as membership in a labor organization may be required
pursuant to a collective-bargaining contract not incon-
sistent with Section 8(a)(3) of the Act.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held at Moraine, Ohio, on September 18, 19, and
20, 1973, at which all parties were afforded an opportunity
to present evidence , has resulted in a Decision that
National Union of Hospital and Nursing Home Employ-
ees, Local 1199H, Retail, Wholesale and Department Store
Union, AFL-CIO, is the collective-bargaining representa-
tive of:
All employees employed at the Washington Manor
Nursing Center (North) located at 3109 Campus Drive,
Dayton , Ohio, including nurses aides , orderlies , house-
keeping employees, maids, cooks, kitchen employees,,
dietary employees, the activities therapist, the beauti-
cian, maintenance employees, and the receptionist, but,
WASHINGTON MANOR, INC.,
DOING BUSINESS AS
WASHINGTON MANOR
NURSING CENTER (NORTH)
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Office Building, Room 2407, 550 Main Street,
Cincinnati, Ohio 45202, Telephone 513-684-3686.