Whitemarsh Nursing Center

National Labor Relations Board - Board Decisions

Mar 27, 1974

209 N.L.R.B. 873 (N.L.R.B. 1974)

WHITEMARSH NURSING CENTER 873
Ridge Care, Inc. t/a Whitemarsh Nursing Center and
Local 1199C, National Union of Hospital and
Nursing Home Employees , Division of RWDSU,
AFL-CIO, Petitioner . Case 4-RC-10236
March 27, 1974
DECISION ON REVIEW AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On May 15, 1973, the Regional Director for Region
4 issued his Decision and Direction of Election in the
above-entitled proceeding in which he found, in the
circumstances of the case, that the recognition
agreement between the Employer and the Intervenor
was not a bar to an election. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Employer and the Intervenor filed
timely requests for review of the Regional Director's
Decision on the grounds that in concluding that their
recognition agreement was inoperative as a bar he
made findings of fact which are clearly erroneous
and departed from officially reported precedent.
On June 6, 1973, the Board by telegraphic order
granted the requests for review and stayed the
election pending decision on review. Thereafter, the
Employer filed a brief on review and requested oral
argument.
Pursuant to the provisions of Section 3(b) of the
National Labo- 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 entire record in this
case with respect to the issues under review,
including the Employer's brief on review,' and
makes the following findings:
The Employer and the Intervenor contend, inter
alia, that the Regional Director's failure to accord
bar quality to their recognition agreement is in
conflict with the principle of Keller Plastics Eastern,
Inc., 157 NLRB 583. We agree.
The record shows that the Intervenor began
organizing the Employer's employees in May 1972.
On January 15, 1973, the Intervenor notified the
Employer that it represented a majority of the
employees involved and wished to negotiate an
agreement. On January 22, the Employer wrote the
Intervenor that recognition would be granted only if
the Intervenor went through proper channels to
establish its majority representative status. Thereaft-
er, the Employe- and the Intervenor agreed upon a
cross-check verification of authorization cards by the
American Arbitration Association, herein referred to
as the AAA. On March 2, an arbitrator checked the
Intervenor's cards against a current payroll list of
employees in the agreed-upon unit, together with the
employee signatures on the cards, and found that the
Intervenor presented 48 valid cards among the 91
eligible employees and was the majority representa-
tive for the purposes of collective bargaining. The
Employer thereupon recognized Intervenor as bar-
gaining agent and scheduled a bargaining session for
10 a.m. on Thursday, March 8. On Monday, March
5, the AAA certified the cross-check and the
Intervenor's majority status.
On March 6, by telegram to the Employer, the
Petitioner claimed it represented a majority of the
employees and demanded recognition, offering to
demonstrate its status to the Employer or any
impartial persons agreeable to the parties. On March
7, by telegram to the Petitioner, the Employer
summarized the facts set forth above, asserted its
affirmative duty to bargain with the Intervenor as the
duly established representative chosen by a majority
of its employees and its intent to meet with the
Intervenor to discuss a collective-bargaining agree-
ment. The Employer mailed the Petitioner a copy of
the AAA certification and requested that it adhere
thereto or file an appropriate petition with the Board.
On March 8, the first bargaining session between
the Employer and the Intervenor terminated without
an agreement, as the Intervenor would not accede to
the Employer's request for indemnity in view of its
information that a rival petition would be filed with
the Board. The instant petition was filed the same
day.
There is no evidence that either the Employer or
the Intervenor was aware of any interest the
Petitioner may have had in representing unit employ-
ees at the time of the AAA-conducted check of the
Intervenor's card support on March 2. It would thus
appear that the Employer's agreement to recognize
the Intervenor on the basis of such card check was
required by the Act, since there is little, if any,
showing the Employer had reasonable grounds for
believing that a competing union was supported by
any of the employees. An organizer for the Petitioner
testified that he first distributed leaflets on February
23 and solicited authorization card signatures for the
Petitioner on February 25. Although he said he had
received signed cards "in the earlier part of March
and the latter part of February," he "couldn't really
say" how many signed cards he had received. We
conclude, in these circumstances, despite the adequa-
1 The request for oral argument is denied as the record and briefs the Employer and the Intervenor, Local 1034, Retail, Wholesale &
adequately present the issues and the positions of the parties In view of our Department Store Workers Union, AFL-CIO, Drug and Hospital Division.
decision herein, we find it unnecessary to consider the other contentions of
209 NLRB No. 148
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cy of the Petitioner's showing of interest to support
its petition, that its interest at the time of the
Employer's recognition of the Intervenor was insuffi-
cient to impair the validity of the means used to
demonstrate the Intervenor's majority status in the
unit. Accordingly, applying the principle of Keller
Plastics to the facts of the instant case ,2 we find that
the Employer's recognition of the Intervenor oper-
ates as a bar to a petition until a reasonable period of
2 Cf Rhe,ngold Breweries, Inc, 162 NLRB 385, Sound Contractors
Association , 162 NLRB 364, 365 , Superior Furniture Manufacturing Co, Inc,
time for bargaining has expired and, as such period
has not expired herein, we shall dismiss the instant
petition.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
167 NLRB 309; Pineville Kraft Corporation , 173 NLRB 863.