Wavecrest Home for Adults

National Labor Relations Board - Board Decisions

Mar 31, 1975

217 N.L.R.B. 227 (N.L.R.B. 1975)

WAVECREST HOME FOR ADULTS
Alex Edelman , Zev Parness , Nash Kestenbaum and
Ilone Friedman , a Copartnership d/b/a Wavecrest
Home for Adults and Local 1115 , Joint Board,
Nursing Home and Hospital Employees Division
Local 4, Medical and Health Employees Union and
Local 1115, Joint Board , Nursing Home and Hos-
pital Employees Division . Cases 29-CA-3793 and
29-CB-1757
March 31, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On November 29, 1974, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent Employer, Charg-
ing Party, and General Counsel filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
I The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
In the last sentence before the section entitled "B. Conclusion," of his
Decision, the Administrative Law Judge inadvertently referred to "Local
1115" instead of "Local 4 "
2 Our finding that the complaint should be dismissed is based on the
special circumstances of this case. It is clear from employee Alexander's
testimony and the entire record herein that the employees who signed
authorization cards on behalf of Local 4, subsequent to indicating support
for Local 1115, did so because of the failure of Local 1115 promptly to
demand recognition or take some immediate action on their behalf. Accord-
ingly, we agree with the Administrative Law Judge that the employees, by
signing cards for Local 4, intended to repudiate the authorization cards they
had previously signed on behalf of Local 1115, and thereby manifested their
desire for exclusive representation by Local 4.
DECISION
STATEMENT OF THE CASE
227
JERROLD H. SHAPIRO, Administrative Law Judge: The hear-
ing in these cases was held on September 30, 1974, and is
based upon unfair labor practice charges filed by Local 1115,
Joint Board, Nursing Home and Hospital Employees Divi-
sion, herein called the Charging Party or Local 1115, on
April 3, 1974, and a consolidated complaint issued on July 25,
1974, on behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Regional
Director of the Board, Region 29, alleging that Wavecrest
Home for Adults, herein called the Respondent Employer,
has engaged in unfair labor practices within the meaning of
Section 8(a)(1), (2), and (3) of the National Labor Relations
Act, herein called the Act, and that Local 4, Medical and
Health Employees Union, herein called Respondent Union,
has engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and 8(b)(2) of the Act. The Respondents
filed answers denying the commission of the alleged unfair
labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Respondent Employer is a partnership composed of Alex
Edelman, Zev Parness, Nash Kestenbaum, and Ilone Fried-
man, copartners, which does business using the trade name,
Wavecrest Home for Adults. It maintains its principal office
and place of business in Far Rockaway, New York, where it
provides convalescent care, and operates a resident home, for
aged and infirm persons. In the course of this business opera-
tion, Respondent Employer annually receives gross revenues
exceeding $100,000 and purchases over $50,000 worth of
supplies which originate outside the 'State of New York. The
Respondents admit and I find, that Respondent Employer is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
Local 1115, Joint Board, Nursing Home and Hospital Em-
ployees Division, the Charging Party, and Local 4, Medical
and Health Employees Union, the Respondent Union, each
are admittedly labor organizations within the meaning of
Section 2(5) of the Act.
III THE QUESTIONS TO BE DECIDED
On December 9, 1973,' Respondents entered into a writ-
ten recognition agreement wherein the Respondent Employer
agreed to recognize the Respondent Union as its employees'
exclusive bargaining representative. Shortly thereafter, Re-
spondents entered into a collective -bargaining agreement
containing a union-security agreement requiring membership
I Unless otherwise specified, all dates herein refer to 1973.
217 NLRB No. 47
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the Union after 30 days of employment as a condition of
continued employment. General Counsel and the Charging
Party contend that by entering into the recognition agree-
ment and executing and maintaining the collective-bargain-
ing agreement Respondents violated the Act. Specifically, it
is urged that on the day the recognition agreement was ex-
ecuted Respondent Union did not represent a majority of the
employees involved and that a question existed concerning
the Respondent Union's representative status.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent Employer, a partnership, operates a home for
the aged and infirmed. One of the partners, Alex Edelman,
is the Employer's Administrator and supervises its day-to-
day operations.
In November employee Haywood Alexander and Keith
McKen, a business representative for Local 1115, met at the
Employer's premises sometimes called the Home, at which
time McKen explained the benefits of representation by Local
1115 and gave Alexander membership application forms
which unambiguously designate Local 1115 as the signer's
collective-bargaining representative. On or about November
12, Alexander signed and solicited, with success, eight em-
ployees to sign membership application forms, which are
referred to hereafter as Local 1115 authorization cards or
simply as cards. In other words, nine employees on or about
November 12 signed cards designating Local 1115 as their
collective-bargaining representative.' Alexander, on or
about November 14, gave these cards to McKen. It is undis-
puted that Local 1115 for 1 month took no action regarding
the employees' request that it represent them. No petition for
an election was filed and it was not until December 14 that
Local 1115, by telegram, requested Respondent Employer to
recognize it as the employees' bargaining representative.
McKen testified that in " the middle of November, after
receiving the authorization cards from Alexander, he visited
the Respondent Employer's Administrator, Edelman.
McKen testified he introduced himself to Edelman and asked
if the Home's employees were represented by a labor organi-
zation, and indicated that Local 1115 was interested in organ-
izing the employees. Edelman stated that the employees were
organized by another union and, because of this, it would be
futile for Local 1115 to organize them. McKen, in general,
was not an impressive witness. In particular, his testimony
about the events which supposedly took place between Local
1115's receipt of the cards and its recognition demand was
2 This finding is based upon Alexander's testimony that he signed a card
and witnessed the eight other cards filled out and signed by the respective
card signers I reject Respondents' contention that Alexander was not an
honest witness in this regard and the further contention of Respondent
Union that Local 1115's cards were signed after Respondents entered into
their recognition agreement, and predated Although Alexander expressed
a degree of uncertainty about the exact location where some of the Local
1115 cards were signed and indicated one of the cards was probably signed
November 13 rather than November 12, 1 believe he was telling the truth
when he testified-about these cards. Alexander's testimony, on this subject,
was given with conviction with every indication that it was truthful Nor was
there anything in his testimony or demeanor to suggest that his version of
the manner in which the cards were secured and the date they were secured
was fabricated.
not presented in a convincing manner. Moreover, his story
sounds false. McKee had been notified by employee Alex-
ander that the Home's employees were not unionized and,
after getting the signed cards from Alexander, McKen testi-
fied that he felt that Local 1115 represented a majority of the
Home's employees. Under the circumstances, it strains
credulity to understand `why McKen would visit Edelman
and tell him that Local 1115 was interested in organizing his
employees and ask if the employees were already organized
by another labor organization. I am of the opinion that
McKen fabricated this episode to support an inference that
Respondent Employer was aware of Local 1115's interest in
the employees when it entered into the Recognition Agree-
ment with Respondent Union. This conclusion is bolstered by
the fact that the Board Agent, who investigated the instant
unfair labor practice charges, which were filed 'by McKen,
was not notified by McKen about his alleged middle of
November meeting with Edelman. The affidavit which
McKen submitted to the Board does not mention this meet-
ing even though McKen regarded it as important to his unfair
labor practice charges and even though the Board Agent,
who took the affidavit, asked McKen when he first met Edel-
man. For these reasons, as Edelman credibly, testified, I find
that McKen did not speak or visit with Edelman in the mid-
dle of November or have any contact with Edelman at any
time before Local 1115's demand for recognition.
Nor was McKen telling the truth when he testified that on
several occasions after receiving the cards from Alexander he
visited Alexander at the Home and told him Local 1115
would shortly make a demand upon the Respondent Em-
ployer that it recognize Local 1115 as the employees' bargain-
ing representative. His testimony was not given convincingly
and does not jibe with Alexander's testimony. In substance,
Alexander testified that there was no contact between himself
and McKen from the time Alexander handed over the cards
to McKen until February 1974, except once when Alexander,
mad because Local 1115 had not taken any action to repre-
sent the employees, phoned McKen and asked if Local 1115
intended to do anything about representing the employees. At
another point, however, Alexander testified that McKen
came to the Home and asked "about the Union" and assured
Alexander that "everything is going to be all right." But in
later testimony, Alexander indicates that this occurred after
Respondents had entered into the December 9 recognition
agreement at which time McKen came to the Home to deter-
mine whether the employees signed cards for the Respondent
Union. Alexander's testimony about his conversations with
McKen is not consistent with McKen's testimony and, like
McKen's testimony, was not presented in a convincing man-
ner and in content was largely incoherent and loaded with
contradictions and inconsistencies. In short, neither Alex-
ander nor McKen appeared to be trustworthy or reliable
when testifying about events which supposedly occurred be-
tween McKen's receipt of the authorization cards from Alex-
ander and Local 1115's demand for recognition. Based on the
foregoing, the evidence when viewed most favorably to the
General Counsel and Charging Party establishes that during
this period of time the only communication between the
Home's employees and Local 1115 was when Alexander,
unhappy over the lack of action by Local 1115, in November
contacted McKen and asked whether Local 1115 intended to
WAVECREST HOME FOR ADULTS
do anything about representing the employees , and was ap-
parently informed that Local 1115 would shortly demand
that the Employer recognize it as the employees ' bargaining
representative . It is undisputed , however, that Local 1115 did
not demand recognition from the Employer until December
14 and that from November 14 to December 14 Local 1115
made no other efforts to secure union representation for the
employees . I further find that because of Local 1115's failure
to act, employee Alexander, the leading union advocate
among the employees , acting on behalf of the employees,
decided to secure representation through Respondent Union.
Alexander's credible testimony is to the effect that since
Local 1115 had not taken any steps to secure union represen-
tation for the employees Alexander decided to get such repre-
sentation through Respondent Union . On or about December
2, Alexander met with Robert Gordon, the President of Re-
spondent Union , and, in response to Gordon 's inquiry, told
him that the employees were not represented by a labor or-
ganization , but that Local 1115 had previously spoken to the
employees but had failed to do anything . Gordon , the next
day, explained to Alexander the benefits provided by Re-
spondent Union and gave him a number of authorization
cards to distribute . It is undisputed that these cards unam-
biguously designate the Respondent Union as the signer's
exclusive bargaining representative . It is admitted that on
December 3, Alexander signed one of the cards and success-
fully solicited 10 other employees to sign cards, and on
December 6 successfully solicited another employee to sign
one. Alexander immediately transmitted the signed cards to
the Respondent Union.
On December 4, by letter, the Respondent Union informed
the Respondent Employer that it represented its employees,
asked for a meeting to negotiate a contract covering the em-
ployees, and asked that a representative of the Home contact
the president of the Respondent Union, Gordon , to arrange
for a meeting . A meeting was scheduled for Sunday , Decem-
ber 9, between the representatives of Respondents at which
time Gordon informed the Home's Administrator , Edelman,
that Respondent Union represented a majority of his em-
ployees and gave Edelman the 12 authorization cards signed
by the employees . Edelman, using the authorization cards,
verified that a majority of the service and maintenance em-
ployees had designated the Respondent Union as their bar-
gaining representative . After verifying Local 4's majority
status, Edelman consulted with his partners , and they agreed
that the Employer would recognize Local 4 , the Respondent
Union, as the employees ' bargaining representative . At this
point, on December 9, the representatives of Respondents
entered into a written recognition agreement wherein the
Respondent Employer recognized the Respondent Union as
the sole exclusive bargaining representative of all of the
Home's employees except for the "office ," "clerical,"
"guards," and "supervisory," employees.'
The Respondent Employer's Administrator , Edelman,
credibly testified that on the date recognition was granted,
December 9, the Respondent Employer had no knowledge of
the organizing efforts of Local 1115 or that Local 1115 was
3 The General Counsel, at the hearing , admitted that a majority of the
Respondent Employer's employees in the unit involved herein on December
9 had signed authorization cards designating the Respondent Union as their
exclusive bargaining representative
229
interested in representing the employees , nor does the evi-
dence otherwise establish that Respondent Employer had
such knowledge on December 9.4
On Sunday , December 16, representatives of Respondents
met to negotiate the terms of a collective -bargaining agree-
ment and by the end of the day had agreed upon the terms
of the agreement which was reduced to writing and signed the
next day, December 17. The agreement is effective from Janu-
ary 1, 1974 , until December 30, 1976, and contains, among
other provisions , a lawful union -security clause requiring
membership in Respondent Union for continued employ-
ment.
Between Respondents ' execution of the recognition agree-
ment on December 9 and the collective -bargaining agreement
on December 17, Local 1115, on Friday, December 14, by
telegram , advised Respondent Employer that Local 1115
represented a majority of its employees and was prepared to
demonstrate its majority status and requested that the Re-
spondent Employer recognize it as the employees ' exclusive
bargaining agent. This telegram was addressed to the Home's
Administrator , Edelman, and as evidenced by the Western
Union report of delivery, was delivered December 14 at 3
p.m. Edelman testified that he left the Home on this date at
2 p.m. and that the telegram did not come to his attention
until Monday , December 17, after Edelman had affixed his
signature to the collective-bargaining agreement . I do not
believe Edelman , and find that Respondent Employer knew
of this telegram and its contents no later than Sunday,
December 16. Edelman , who otherwise impressed me as a
credible witness , did not so impress me when he testified
about his knowledge of the telegram . In demeanor, he was not
a convincing witness. Moreover , his testimony sounds false.
He admitted that the receipt of a telegram was an unusual
occurrence and that during the normal course of business it
would have been delivered to the receptionist , who would
have given it to Edelman or left it on his desk if he was not
available . Despite its importance and unusual nature, Edel-
man testified he had no recollection of how the telegram came
into his possession but believed he found it on his desk after
the contract with Respondent Union had been signed on
Monday, December 17. I cannot believe that Edelman, who
was at the Home on Sunday , December 16, negotiating with
representatives of the Respondent Union, failed to see the
telegram or that such an important matter was not brought
to his attention . I am of the opinion that, under the circum-
stances, it would be naive of me to believe that Edelman
discovered this telegram for the first time immediately after
signing the contract with the Respondent Union on Monday,
December 17, even though it had been delivered to the Home
on December 14 at about 3 p.m.
4 I have considered the General Counsel 's and Charging Party's argument
that the small size of the Home warrants an inference that the activity on
behalf of Local 1115 in November was brought to the attention of the
Respondent Employer But , as indicated previously , the only union activity
involved on behalf of Local 1115 was the signing of union cards which took
place in the space of about 1 day and in all but about three instances
occurred clandestinely away from the Home These circumstances , and the
lack of evidence other than the small size of the Home to support an
inference of Employer knowledge , plus Edelman 's credible denial that he
had such knowledge , lead me to conclude that on December 9, Respondent
Employer was not aware of Local 1115's interest in representing its em-
ployees.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- On December 9, when Respondents entered into their
recognition agreement, of the 17 employees involved
herein,' 11 had signed cards authorizing the Respondent
Union to represent them,6 of whom- 7 had signed- duplicate
cards for Local 1115 7 The record also establishes that on
December 9, of the 17 unit employees, 8 had signed cards
designating Local 1115 as their bargaining representative.'
One last point which should be noted is the variance be-
tween the unit encompassed by the Respondents ' recognition
agreement and the collective -bargaining agreement . The col-
lective-bargaining agreement includes, whereas the recogni-
tion agreement excludes, the clericals employed at the Home.
This variance does not affect the majority status of Local
1115, which with the inclusion of the three clericals, still
represents a majority of the unit employees having authoriza-
tion cards from 11 of the 20 unit employees.
B. Conclusions
General Counsel and the Charging Party argue that at all
times Respondent Union has been a minority union because
7 of the 11 employees who signed cards designating Respond-
ent Union as their bargaining representative had previously
signed identical cards for Local 1115, thus invalidating the 7
cards which leaves Local 1115 with only 4 valid cards out of
a unit of 17 employees.
In situations where an employee signs an authorization
card for each of two unions, it is settled that the card of
neither union will be regarded as a valid designation because
it is impossible to determine which union the employee is
designating as his exclusive bargaining representative.9 But,
an authorization card which is otherwise valid is not conclu-
sively tainted by the fact that it is a duplicate card. The card
signer 's intent is the question involved in such a situation and,
absent evidence which sheds light on the conduct involved,
it is impossible to determine which union the signer intended
to designate as exclusive bargaining representative . However,
if the circumstances demonstrate that in signing a duplicate
card , the signer intended to designate this labor organization
as exclusive bargaining representative rather than the union
previously designated , the so-called duplicate card is a valid
one and can be used to determine the union 's majority status.
See Harry Stein and Arthur Calder d/b/a Ace-Sample Card
Company, 46 NLRB 129, 130-131(1942) (card of Pfeffer). In
the instant case, the circumstances establish that the seven
employees who signed duplicate cards intended to designate
Respondent Union rather than Local 1115 as their exclusive
bargaining representative . Thus, as found, supra, the em-
5 The figure 17 excludes the chef, Priva Thaler, a supervisory employee,
and excludes clerical employees Parties, Sevetar, and Finkelstein.
6 Jenkins, Travers, Roberts, Rizzo , Benrubi, Laufer; Aponte; Williams;
Alexander, Ethel and Mattie Pough The card of a twelfth
signer-Samantha Leiner-does not appear on Respondent Employer's
payroll record as read into the record
7 Jenkins, Aponte, Roberts, Alexander, Williams, Ethel and Mattie
Pough
8 The employees named in fn 7 supra, plus Mary Davis
9 See Hi Temp Inc., a Division ofBeatnce Foods Co, Tru Temp. Inc., Steel
Treating Inc. 203 NLRB 753 (1973); Intalco Aluminum Corp., 169 NLRB
1034 (1968), Allied Supermarkets, Inc., 169 NLRB 927 (1968), J. W Morrell
Company, 168 NLRB 435, 453, (1967), and cases cited therein, Harry Stein
and Arthur Calder d/b/a Ace Sample Card Company, 46 NLRB 129,
130-131 (1942).
ployees signed cards designating the Respondent Union as
their exclusive bargaining representative because Local 1115
had foiled to act to represent them. The employees signed
their duplicate cards with the intent to repudiate Local 1115
and to switch their allegiance to Respondent Union. For
these reasons, I find that on the date the Respondents entered
into their recognition agreement , December 9, the seven em-
ployees who signed duplicate cards desired exclusive repre-
sentation from Respondent Union rather than by Local 1115.
It is undisputed that a majority of the employees involved
herein signed authorization cards designating the Respond-
ent Union as their exclusive collective-bargaining representa-
tive and that, based upon these cards, the-Respondent Union
requested recognition as the employees' exclusive representa-
tive. Respondent Employer agreed to recognize the Union if
a check of its authorization cards revealed that it was the
employees' majority representative and when a check of the
cards verified the Union's majority status, the Respondents
entered into written recognition agreement wherein the Re-
spondent Employer recognized the Respondent Union as its
employees' exclusive bargaining representative . The recogni-
tion agreement was entered into at a time when the Respond-
ent Employer was without knowledge that another labor or-
ganization , Local 1115, had an interest in representing its
employees , nor did the Respondent Employer have an inkling
that a substantial number of the employees had previously
designated Local 1115 as their bargaining representative, or
that its employees were otherwise interested in being repre-
sented by Local 1115. It would thus appear that the Respond-
ent Employer 's agreement to recognize the Respondent
Union on the basis of the card check was required by the Act.
Under these circumstances , it is my view , as contended by
Respondents, that the Keller Plastics'° principle is here ap-
plicable to immunize the Respondent Employer and the Re-
spondent Union from the violations alleged in the con-
solidated complaint, namely, the grant and acceptance of
voluntary recognition on December 9 and the entering into
the maintaining of the collective-bargaining agreement
reached on December 16. Under Keller Plastics, a request for
recognition by a rival union, following the execution of a
recognition agreement , will not raise a question of the repre-
sentative status of the recognized union provided that such
recognition has been granted "in good faith on the basis of a
previously demonstrated showing of majority and at a time
when only that union was actively engaged in organizing the
unit employees." Sound Contractors Association, 162 NLRB
364, 365 (1966). In the instant case, recognition was granted
in good faith on the basis of a previously demonstrated show-
ing of majority and at a time when only Respondent Union
was actively engaged in organizing the unit employees" and
10 Keller Plastics Eastern , Inc., 157 NLRB 583 (1966), where the Board
held that a validly recognized union is entitled to a continuing representa-
tive status for a reasonable period of time during which it may negotiate a
contract notwithstanding the fact that the union may have lost its majority
status during the interim.
11 Local 1115's campaign to organize the employees took place about one
month before Respondents entered into their recognition agreement its
campaign consisted of the solicitation of the employees on November 12 to
sign union authorization cards . Thereafter , Local 1115 engaged in no other
organizational activity among the employees who because of its failure to
take steps to represent them repudiated Local 1115 and signed cards for the
Respondent Union early in December. These circumstances demonstrate
WAVECREST HOME FOR ADULTS 231
when the Respondent Employer was not aware of Local gaining agreement following Local 1-115's demand for recog-
1115's interest in- representing the employees. Accordingly, nition. Cf. Ridge Care, Inc. t/a Whitemarsh Nursing
under the circumstances herein, I conclude that the Respond- Center, 209 NLRB 873 (1974), and Mojave Electric Coopera-
ents did not run afoul of the Act by respectively granting and tive, Inc., 210 NLRB 88 (1974). For these reasons, I shall
accepting recognition, or by entering into a collective-bar- recommend that the consolidated complaint in this matter be
dismissed in its entirety.
that recognition was granted by the Respondent Employer "at a time when [Recommended Order for dismissal omitted from
only [Respondent Union] was actively engaged in organizing the unit em-
publication.]
ployees."