House of the Good Samaritan

HOUSE OF THE GOOD SAMARITAN 539 The House of the Good Samaritan and the Samari- tan-Keep Nursing Home, Inc. and Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO. Case 3- CA-8596 March 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 13, 1979, Administrative Law Judge George Norman issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.' 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 brief and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. This case presents the identical issue considered in Aurelia Osborn Fox Memorial Hospital.3 In Fox Memorial Hospital, we found that the affiliation be- tween LPNNY and S.E.I.U., AFL-CIO, effected "no substantial change, if any," in the representa- tion of the bargaining unit employees so that no question concerning representation arose. We also restated the principle that where, as here, complete continuity in representation has been maintained, a separate vote for affiliation by Respondent's em- ployees is not required.4 Thus, for the reasons set forth in Fox Memorial Hospital, we adopt the Ad- ministrative Law Judge's finding that no question concerning representation exists and that by refus- I Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties. a Respondent excepts, inter alia, to the Administrative Law Judge's factual finding that the Jefferson County Division (JCD) delegates were selected at the March 1978 division meeting, contending that JCD Presi- dent McQueer selected some of the delegates after that meeting and that such selection did not comport with general standards of due process. Al- though the record shows that some delegates in fact were chosen after the March meeting, it is our opinion that the selection did not constitute a denial of due process to the membership, particularly since no member objected to the selection of the delegates. Respondent also excepts to the Administrative Law Judge's factual finding that former JCD President DiMienco introduced the subject of affiliation at the March 1978 meeting, contending that DiMienco was not present at that meeting Since the record indicates DiMienco was refer- ring to the February 1978 meeting in his testimony on this matter, we hereby note and correct the Administrative L.av Judge's apparently inad- vertent error, which in no way affects our decision here 1 247 NLRB No. 43 (1980). 4 See also American Enka Company, a Divlsion of Akzona Incorporated, 231 NLRB 1335 (1977) 248 NLRB No. 48 ing to bargain with Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., Respondent violated Section 8(a)(5) of the Act. 5 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, The House of Good Samaritan and The Samaritan-Keep Nursing Home, Inc., Watertown, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I We also note that for 2 years Respondent here, unlike in Fox Memo- rial Hospital supra, knew of the temporary affiliation agreement between LPNNY and the S.E I.U, and yet continued to recognize and bargain with the Union DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This matter was heard at Watertown, New York, beginning November 16, 1978, and closing on February 7, 1979. It is based on a charge filed July 14, 1978, by Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO (herein called LPN- TECH, or the Union). On August 21, 1978, the Acting Regional Director for Region 3 of the National Labor Relations Board (herein called the Board), on behalf of the General Counsel of the Board, issued a complaint and notice of hearing. The complaint alleged violations by The House of the Good Samaritan and The Samari- tan-Keep Nursing Home, Inc. (herein called Respon- dent), of Section 8(a)(t) and (5) of the National Labor Relations Act (herein called the Act). Respondent's answer, in substance, denied the commis- sion of any unfair labor practices, claiming that LPN- TECH is not the duly authorized bargaining representa- tives of Respondent's employees and does not represent a majority of said employees. Upon the entire record in this case, from my observa- tion of the witnesses and their demeanor, and after due consideration of the briefs filed by Respondent and the General Counsel, I make the following: FINDINGS AND CONCLUSIONS The following findings of fact are based upon a con- sideration of the entire record. In addition, credibility resolutions have been derived in large part from impres- sions which the various witnesses made upon me at the hearing. To the extent that the testimony of any wit- nesses are not consistent with the findings made, that tes- timony is not credited. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. RESPONDENT'S BUSINESS Respondent is a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein, Respondent has maintained its office and place of business at Washington and Pratt Streets in the city of Watertown, New York, and is and has been at all times material herein engaged in the busi- ness of providing and performing health care and related services. Respondent's office and place of business above is the only facility involved in this proceeding. In the course and conduct of its business operations, Respon- dent annually provides health care and related services, a gross value of which exceeds $250,000. During the same period of time Respondent received goods valued in excess of $1,000 transported to its place of business in in- terstate commerce directly from States of the United States other than the State of New York. Respondent admits and I find that it is and has been, at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATIONS LPN-TECH is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. The Licensed Practical Nurses of New York, Inc., was at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Service Employees International Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In September 1974, the majority of the employees of Respondent in the following unit, by a secret-ballot elec- tion conducted by the New York State Labor Relations Board, designated and selected Licensed Practical Nurses of New York, Inc. (herein called LPNNY), as their rep- resentative for the purpose of collective bargaining with Respondent, and on or about September 13, 1974, the New York State Labor Relations Board certified LPNNY as the exclusive bargaining representative of the employees in said unit: All full-time and regular part-time licensed practical nurses, including graduate licensed practical nurses permitted to practice as licensed practical nurses (excluding supervisors, technical employees, clerical employees, service and maintenance employees, RN's and all others), employed by The House of the Good Samaritan and The Samaritan-Keep Nurs- ing Home, Inc., 830 Washington Avenue and 133 Pratt Street, Watertown, New York. Since the date of certification, Respondent has recog- nized and bargained collectively with LPNNY as the ex- clusive bargaining representative of the employees in the unit described above and entered into successive collec- tive-bargaining agreements with LPNNY, covering those employees, the most recent of which expired August 31, 1978. Although the certified representative of Respondent's employees was LPNNY, a statewide labor organization, the actual day-to-day representation was carried out through the Jefferson County Division of LPNNY. The Jefferson County Division had 108 members which was approximately the number of LPNs employed by Re- spondent. The Jefferson County Division negotiated its own contracts with Respondent and processed its own grievances. Sylvia J. Allison, president of LPN-TECH, and a rep- resentative from that Local on the International Board of SEIU, testified that LPNNY in early 1976 was threat- ened with raids from other unions who were seeking to represent employees who are represented by LPNNY, and in New York City, under a public collective-bargain- ing scheme, the LPNNY was going to be forced to bar- gain along with several other labor organizations. She testified that LPNNY was notified that it was one of those small groups which was going to be combined into a unit with other unions which would have resulted in a loss of identity and an inability to provide effective rep- resentation for its members. SEIU, according to Allision, was selected by the executive board of LPNNY for af- filiation because, by affiliating with SEIU, LPNNY would be able to maintain its identity; do its own collec- tive bargaining; function independently; retain its board; and generally operate as it had in the past, without change. In addition, by affiliating with an AFL-CIO or- ganization LPNNY would be protected from raids from other AFL-CIO unions, and by affiliating with an inter- national labor organization LPNNY would be entitled to maintain its independence in negotiations in New York City. In early 1976, the Jefferson County division selected delegates and alternates for the 1976 annual convention of LPNNY pursuant to article 13 of the LPNNY bylaws. The matter of affiliation between LPNNY and SEIU had not yet been presented to the membership. At the May 1976 state convention of LPNNY, the del- egates were given a thorough briefing as to the need for affiliation and its effect. Michael DiMienco, then presi- dent of the Jefferson County division, testified that at the convention two speakers addressed the delegates on the subject of affiliation. They were Robert Silagi, attorney for LPNNY, who was instrumental in drafting the tem- porary or trial affiliation agreement, and Pearl Raisen, who was the president of LPNNY at that time. The speakers told the assembled delegates that there were two reasons for the need for affiliation: (1) that the affili- ation would give LPNNY more power and backing, and (2) the affiliation with SEIU would help protect LPNNY from the problem in New York City, previously dis- cussed. Allison further testified that it was explained to the delegates that by adopting the affiliation with SEIU Art. V of the bylaws of Licensed Practical Nurses of New York, Inc., provides that membership of county divisions shall be composed of licensed practical nurses and technicians. It also provides, among other things, that a county division must have a membership of not less than 15 members; have adopted the provisions and bylaws of Licensed Practical Nurses of New York, Inc,; pay on a per capita basis to Licensed Practical Nurses of New York, Inc, annual membership dues for the state and na- tional federation; and submit data as may be requested by the executive board of Licensed Practical Nurses of New York, Inc. HOUSE OF THE GOOD SAMARITAN 541 LPNNY would be able to retain its autonomy. She said that there were extensive discussions among the dele- gates as to the need for affiliation. Many questions were asked by the delegates and answered prior to there being a vote. She stated, in addition, that the delegates did not feel there was any pressure being placed on them to vote in favor of affiliation. The proposed temporary or trial affiliation agreement was circulated to the delegates for their review and a lengthy discussion took place concerning it. No SEIU representatives were present at those discussions. A vote for adopting the agreement was carried, with one "No" vote. The temporary or trial affiliation agreement was ex- ecuted on May 11, 1976. Paragraph 5 thereof provides in part that "until May 31, 1978, the succession, dissolution or disaffiliation from SEIU may be voted by the mem- bership of LPNNY at any annual convention or special convention that is called for that purpose. Paragraph 6 of the temporary affiliation agreement provided as follows: At all times, whether during the period of affiliation with SEIU or at any other time, LPNNY shall retain its identity consistent with its own principles and policies and have full autonomy as a local union in accordance with the provisions of the In- ternational Constitution and By-laws of SEIU. LPNNY's autonomy shall include, but is not limited to, the right to establish its own by-laws, its own dues structure, select its own staff, call a legal strike by its membership, vote, make its own decisions re- garding contracts and economic actions by vote of its own membership, retain professional services in- cluding accountants and attorneys, as well as make policy determinations concerning LPNNY. In that regard, SEIU hereby waives the provisions of Arti- cle VIII, Section (f) insofar as it pertains to the au- thority of the president of SEIU to negotiate a col- lective bargaining agreement for LPNNY, except when requested to do so by LPNNY. After the 1976 state convention, Michael DiMienco made a report to the membership of the Jefferson County division at a division meeting. He described then what had occurred concerning affiliation at the conven- tion and why. In addition, all members of LPNNY re- ceived a copy of the New York LPN magazine, which described the temporary affiliation agreement with SEIU, which had been approved at the 1976 state con- vention. Respondent had notice of the 1976 temporary affili- ation agreement and its effect. Alfreda Shippee, who was president of the Jefferson County division of LPNNY before DiMienco, was a delegate to the 1976 state con- vention. As a delegate, she cast her vote in favor of the affiliation with SEIU. Following the 1976 LPNNY con- vention, Alfreda Shippee took part in negotiations with the Jefferson County division as a member of manage- ment's negotiation team.2 Michael DiMienco testified 2 The 1976 negotiations resulted in a collective-bargaining agreement between the parties which was in effect from September 1, 1976, through that around the time of the 1976 negotiations he had at least one discussion with Thomas Pilgemeyer, personnel manager of Respondent, concerning the affiliation of LPNNY with SEIU. Under the 1976 temporary affiliation agreement no changes were made in the number of local officers in the Jefferson County division or their control over the bank accounts of the division. Nor was there an audit of the Jefferson County division assets conducted by represen- tatives of the SEIU. 3 Negotiations were conducted in the same manner before and after the 1976 affiliation and by the same people. No representatives from SEIU played a role in negotiations for LPNNY. In March 1978, the Jefferson County division held a division meeting at which delegates were selected for the upcoming annual 1978 LPNNY convention. In accor- dance with past practice, postcards were sent to mem- bers informing them of the time, the date, and location of the meeting. In addition, a notice was posted at Respon- dent's facility in several locations as another means of in- forming the employees of the upcoming meeting. The Jefferson County division is entitled to five delegates and five alternates under the LPNNY bylaws. At the March 1978 meeting, only 3 or 4 persons out of the 8 or 10 in attendance 4 expressed interest in being delegates to the convention. As each person was asked by the president, Harriet McQueer, if he or she would be willing to serve as a delegate, upon an expression of willingness by the individual, the membership at the meeting approved that person as a delegate. At the March 1978 meeting, Mi- chael DiMienco brought up the subject of affiliation but apparently no discussion took place concerning it at that meeting. The April 6, 1978, Jefferson County division meeting Approximately 2 weeks before the scheduled April 6, 1978, meeting of the Jefferson County division, Debra Dowe, secretary for the Jefferson County division, sent postcards to all members of the Jefferson County divi- sion notifying them of the upcoming meeting. Contrary to the secretary's normal practice, she placed on the postcards the words "Important meeting, please attend!" with an asterisk at the beginning of these words. Dowe also posted notices on the bulletin boards at The House of the Good Samaritan and The Samaritan-Keep Nursing Home, Inc., notifying unit employees of the upcoming meeting and that it was an important meeting and that all nurses were urged to attend. The notices read, "Impor- tant meeting. Please attend." The April 1978 meeting was attended by a larger than usual number of licensed practical nurses, 31 of whom signed their names on the attendance list. The minutes of August 31, 1978. Respondent admitted that Shippee was and is a supervi- sor within the meaning of the Act. The parties stipulated that the number of offices in the Jefferson County division did not change as a result of the 1976 affiliation agree- ment; that the assets of LPNNY at the time of the affiliation did not change after the affiliation; and that the people who exercised control over those assets remained the same. I Betvween 10 and 15 persons would normally attend these monthly meetings. Business was carried on in this manner even though that number was only a fraction of the 108 members 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that meeting reveal that many other licensed practical nurses were present, but had not signed the attendance list.5 Robert Smith, employed by LPN-TECH, Local 721, S.E.I.U., AFL-CIO, as a field representative, testi- fied that he attended the April 1978 meeting and recalled that the subject of permanent affiliation with SEIU was discussed. He corroborated DiMienco's testimony that Mrs. Wilber, the other union field representative, brought up the subject. He said that no one present at the April meeting expressed opposition to permanent af- filiation. He said the upcoming annual convention was discussed in connection with the issue of permanent af- filiation. Harriet McQueer testified that Jennie Wilber raised the subject of affiliation at the April 6 meeting. She said that Jennie Wilber was asked by someone present at that meeting if permanent affiliation meant the dues would be raised. She said that Wilber replied that there would not be an increase in dues but that would be decided at the convention, if necessary. McQueer was asked whether she conducted the meeting according to Robert's Rules of Order and she said she did not conduct any meetings according to Robert's Rules of Order. She said that the meetings were usually attended by a small group and that business was conducted on a "very informal" basis. She said that nobody at the meeting requested that a vote be taken on the subject of affiliation and no normal vote, either secret ballot or counting of hands, was taken. Jennie Wilber testified she attended the April 6, 1978, meeting and that she had brought up the topic of a per- manent affiliation. She said there was much discussion about permanent affiliation after she had indicated that permanent affiliation would be voted on at the upcoming state convention. She said that she had gathered from the discussions that the sentiment was largely in favor of permanent affiliation. Fern Fargo's testimony substantially corroborated the foregoing with respect to the discussion of permanent af- filiation at the April 6, 1978, meeting. Respondent's two witnesses, Charlene Matice, and Al- freda Shippee, testified that they attended the April 6, 1978, Jefferson County division meeting. Matice said she did not recall any discussion of the affiliation at the April 1978 meeting but admitted on cross-examination that she sat beside Eva Picco and others that she knew and en- A greater than usual attendance at the April 6, 1978, meeting demon- strated that the Jefferson County division was successful in its effort to notify the unit members of the significance of that meeting. Michael Di- Mienco testified that at the April meeting the subject of affiliation with the SEIU was brought up by Jennie Wilber who stated the advantages of affiliating on a permanent basis as opposed to the temporary affiliation. She also said that they would lose strength in New York City if the LPNNY disaffiliated. DiMienco also said that the whole room was in an uproar, talking mostly in favor of affiliation and that he did not recall anyone speaking in opposition to permanent affiliation. At the time of the April 1978 meeting, DiMienco was a member and past president and Harriet McQueer was the president. DiMienco said that he would have put the question of permanent affiliation to a formal vote had he been president at the time, but that it was not McQueer's practice to be that "formal" and business during her stewardship was conducted on a "gen- eral consensus" basis. DiMienco stated further that while he was presi- dent he asked for a showing of hands as a means of voting on a particular issue but that the election of officers was conducted by secret ballot, pur- suant to the bylaws. gaged in various conversations with them during the course of the meeting. Her memory was not good as to whether people were called upon by name to speak at that meeting. Shippee testified that, other than a discussion about the new contract, she did not recall what was discussed at the April 6 meeting. She said she visited a lot with "Jennie" (Wilber) that night because she had not seen her for a while and she also said that she (Shippee) was not paying much attention because she "really wasn't a member." She said she did more friendly visiting than paying attention to the meeting and that she had no rec- ollection of any discussion at the meeting about two li- censed practical nurses whom she admitted knowing, Diane Machon and Bonnie Bray. (The official minutes of the April 6, 1978, meeting revealed that both persons were discussed by name at that meeting.) 6 The LPNNY 1978 annual convention On May 21-25, 1978, the annual state convention of LPNNY took place in New York City. Mrs. Sylvia Alli- son, president of LPNNY, addressed the delegates, after which they were given an opportunity to ask any ques- tions on the issue of permanent affiliation before the voting. Many questions were asked and answered follow- ing which President Allison called for a vote. Those in favor were asked to stand. Thereafter, those who op- posed were given an opportunity to stand. The vote was unanimous in favor of permanent affiliation with SEIU. The name of LPNNY was changed at the convention to Licensed Practical Nurses and Technicians of New York, Inc. After the 1978 convention, the members of LPN- TECH were sent the LPN Professional Magazine which informed them that the affiliation vote at the 1978 con- vention was unanimous in favor of permanent affiliation with SEIU. The magazine listed the officers and staff who were either elected at the 1978 convention or whose terms were extended. The list of officers and di- rectors reveals that all the officers of LPNNY who were officers before the 1978 convention remained as officers after. Except for three, the directors remained the same. Negotiations for a new contract On March 21, 1978, Robert E. Smith, field representa- tive for LPNNY, informed Respondent that LPNNY wished to renegotiate the contract which was about to expire. On April 3, 1978, Thomas Pilgemeyer, director of personnel for Respondent, wrote to Smith suggesting dates for the first negotiation session. On May 5, 1978, representatives for Respondent and LPNNY met for the first negotiation session. Alfreda Shippee was again one 6 Since neither Matice nor Shippee recalled any discussion concerning permanent affiliation at the April 6, 1978, meeting because of the poor memory of both and Shippee's admitted lack of interest because she was a member of management, I do not consider either a reliable witness with respect to whether the discussion of permanent affiliation took place at the April 6 meeting. I credit the overwhelming preponderance of evi- dence through the consistent testimony of all of the General Counsel's witnesses and find that a discussion of the question of affiliation did, indeed, take place at the April 6 meeting, and that the sentiment ex- pressed by those in attendance was pro-permanent affiliation with no ex- pression of opposition to it HOUSE OF THE GOOD SAMARITAN 543 of the negotiating team members for Respondent. At that session many of LPNNY's proposals were agreed to by Respondent. A second negotiation session was held on June 5, 1978. No negotiations took place at the second bargaining session, and although further negotiation ses- sions were scheduled Respondent refused to meet with the Union and, as admitted in its answer, Respondent has continued to refuse to meet and bargain with the Union. In September 1978, Respondent stopped deducting dues from its employees for payment to the Union. And in of spite no dues checkoff, as of January 12, 1979, ac- cording to the testimony of the president of the local, only 13 employees, among approximately 108 members of the Union, had not paid dues. Local President McQueer also testified that 16 employees have applied for membership in the Union since Respondent's refusal to bargain.7 The petition (G.C. Exh. 5) discussed in the previous footnote contains 105 signatures and, as of the date of the petition, Respondent employed 151 LPNs.8 At the hearing, Respondent showed that the 105 signatures in- cluded some nonemployees, duplicate names of employ- ees, and a few LPNs that Respondent claimed were not in the unit. However, the total of the challenged and du- plicate names would not affect the majority expression in favor of permanent affiliation. The after-the-fact expres- sion is given some weight but not controlling weight herein. Discussion and conclusions The main concerns, or the decisive issues, in this case are (1) whether the employees of Respondent are being compelled to be represented by a union not of their own choosing, and (2) whether there is a substantial continu- ity between the predecessor and successor unions. Thus, if the employees were not in favor of permanent affili- ation or if the affiliation substituted "a different" union for the certified representative, the employer would not be obligated to recognize and bargain with that successor labor organization as the exclusive collective-bargaining representative of its employees. A factual determination must be made as to whether the successor labor organi- zation is the employees' choice for a representative within the meaning of Section 9(a) of the Act. American Enka Company, 231 NLRB 1335 (1977). Expressed dif- ferently, the question here is whether the Union is the 7 G.C. Eh. 5 is a document consisting of 14 pages, each of which is headed, "Licensed Practical Nurses and Technicians of New York, Inc., Local 721, Service Employees International Union, AFL-CIO," with a New York address and telephone number and a Syracuse address and telephone number. It is dated September 7, 1978, and each page reads, "We the undersigned employed as LPN's [atl Good Samaritan Hospital and Samaritan-Keep Home in Watertown, New York, do hereby approve the action taken at the Licensed Practical Nurses of New York, Inc., annual convention held in May of 1978, to permanently affiliate with the Service Employees International Union and change our name to Li- censed Practical Nurses and Technicians of New York, Inc., Local 721, Service Employees International Union, AFL-CIO, CLC." There is also a name and address heading on each page containing several handwritten names and addresses of Respondent's employees under it I Respondent offered the Union a secret-ballot election conducted by the American Arbitration Association to determine Respondent's employ- ees' wishes with respect to affiliation. Local 721 refused Respondent's offer. same organization with only external changes in appear- ance or whether it is a new organization. If the employ- ees' own organization remains substantially the same, change in name without much more is immaterial. Here, the facts demonstrate that the change of affili- ation is little more than a change in name. It is true that, in affiliating with SEIU, LPNNY is now part of an AFL-CIO International Union, but the affiliation had little effect on the continuity of the internal organization of LPNNY. All assets of the Jefferson County division remained with it as Local 721, LPN-TECH. All obliga- tions of LPNNY Jefferson County division were as- sumed by the latter. Memberships were continued with- out formality, and the officers remained the same as before affiliation, except for three directors. As for the employees' choice, the affiliation in this case had been considered and discussed since the tempo- rary affiliation agreement was entered into in 1976. During that period the employees were apprised that the affiliation was being considered. They knew why LPNNY considered affiliation necessary, to prevent a raid on their membership and to strengthen the Union's bargaining position. In sum, the successor union re- mained virtually the same representative of Respondent's employees as LPNNY. Thus, I find that there was more than a substantial continuity between the predecessor union and the successor and the requirements of National Carbon Company, 116 NLRB 488 (1956), enfd. 224 F.2d 672 (6th Cir. 1957); and New England Foundry Corpora- tion, 192 NLRB 785 (1971), have been met. It is also significant that Harriet McQueer, who repre- sented the Jefferson County division, LPNNY, as a dele- gate along with other employees of Respondent who were delegates at the 1978 convention at which affili- ation was unanimously approved, was, at the time of the proceedings in this case, still president of the Jefferson County division, LPNNY-now called Local 721, LPN- TECH. It appears, therefore, in view of the employees' knowledge of and participation in the affiliation process, and in view of the absence of any indication of employer opposition thereto, that the employees' "basic statutory right to express their choice" as the court stated in Dickie v. N.L.R.B., 218 F.2d 52 (6th Cir.), was expressed in favor of affiliation and of represensation by the affili- ated organization. The affiliation appears to have made virtually no impact upon the individual employee-mem- bers of LPNNY. The employees were afforded due process Respondent points out that in the only vote recorded in the matter Respondent's employee LPNs9 rejected af- filiation with SEIU unanimously in 1975. The minutes of the October 2, 1975, meeting revealed that a letter was read to those who attended regarding a proposal that LPNS be included with technicians, thereby giving the LPNs more strength. The minutes of that meeting read, in part, as follows: This deal involves becoming part of a Union, SEIU, Service Employees International Union. g Licensed practical nurses 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was voted by majority of attending members not to become a party to this. Hazel Stacey and Marietta Tout, will attend the national convention as our delegates and vote negatively to becoming a part of the union, SEIU. The minutes also indicated that 16 persons attended that meeting. That may have been the sentiment of the mem- bership attending the meeting in 1975, but in 1976 Jeffer- son County division of LPNNY voted to affiliate on a temporary 2-year basis with the SEIU, and in 1978 the LPNNY convention unanimously voted to permanently affiliate with SEIU. t ° Respondent further contends that the delegates were not eligible under LPNNY bylaws articles XI and XIII, were not picked by the rank-and-file, were not instructed by LPNs on their wishes, and voted to affiliate with SEIU in a public vote without opportunity for a secret ballot. Respondent merely alleges, and offers no proof, that the delegates selected to represent the Jefferson County division were not eligible to vote. After advertis- ing to the unit members of the upcoming important meeting, a small percentage of the membership chose to attend. At the meeting, as indicated previously, President Harriet McQueer asked for volunteers to attend the annual convention as delegates. As individual members volunteered, McQueer, with the consent of those attend- ing and with no opposition, selected herself and four other volunteers to attend as delegates. In the circurn- stances, I do not find either a substantive violation of the bylaws or a denial of due process to the membership who were given ample opportunity to appear and ex- press their desires in the matter. Respondent also points out that, even though the county was entitled to five alternates, only two were designated to serve in that capacity. I do not find that the selection of two alternates when the division was "entitled" to five, in the circumstances, constitutes a denial of due process to the membership. I also find that during the April meeting there was indeed an instruction by the membership who attended without opposition that the delegates were to vote for permanent affiliation with the SEIU at the upcoming annual convention. In the cir- cumstances, I do not find the absence of a secret ballot on the matter either in violation of the bylaws or a denial of due process. It is also noted that no one at the April meeting requested or moved for a secret ballot. In The tHamilton Tool Company, 190 NLRB 571 (1971), the question was whether the failure of the Union to strictly follow Robert's Rules of Order invalidated an af- filiation vote. The Board upheld the vote noting that it "does not normally concern itself with determining whether a membership meeting was held in strict confor- mity with the Union's constitution and bylaws absent a clear showing . . . of substantial irregularity." In that case the Board cited Gates City Optical Company, etc., 175 NLRB 1059, fn. 3 (1969). 10 it is noted that there is no evidence that any other county division of LPNNY has been challenged by any other employer with whom LPNNY has had collective-bargaining relationships on the matter of em- ployee-member choice or continuity of organization following affiliation With respect to the number of members present at the Jefferson County division meetings, suggesting that there was the absence of a quorum under section 64 of Rob- ert's Rules of Order, the minutes of the Jefferson County division and the testimony reflect that for at least the past several years the Jefferson County division has aver- aged approximately 10 to 15 members at each division meeting. And even though such a small number does not constitute a majority of membership of 108, the practice of the division over the past several years to conduct business without a majority of the members demonstrates that the Jefferson County division has modified (de facto) the quorum provision to comport with the average atten- dance. East Dayton Tool & Die Company, 190 NLRB 577 (1971). Respondent also contends that only sketchy informa- tion about the proposed affiliation was given to the rank- and-file employees at a meeting called for other pur- poses, and in which no vote was taken "under interfer- ence of a supervisor who was an obvious friend of an im- portant SEIU field agent, the featured guest." As previ- ously indicated, that supervisor, Alfreda Shippee, testi- fied on behalf of Respondent. Her memory of the meet- ing in question was poor and I therefore do not credit her. She did not recall that the field agent of SEIU, Jennie Wilber, spoke to the members at that meeting about the affiliation. By the time of that meeting the question of permanent affiliation was on the minds of the membership since 1976, the date the state convention ap- proved the temporary or trial affiliation. Respondent's contention that "at best, only sketchy information about the proposals of affiliation was given to rank-and-file at that meeting" is not supported by the evidence. More- over, the meeting was not called, as alleged by Respon- dent, "for other purposes." Finally, Respondent points out that "even the presi- dent of the HGS/SKHLPN Unit had no prior knowl- edge of the state convention action on preliminary "tem- porary affiliation" in 1976. In that connection former President Michael DiMienco did indeed testify that he had no prior knowledge that the state convention would either take up or vote on the matter of "temporary affili- ation" in 1976. Nevertheless, the matter of "affiliation" was in the minds of the membership as early as October 1975, and the fact that President DiMienco had no prior knowledge of the state convention action on preliminary temporary affiliation in 1976 is of little consequence. The fact of the matter is temporary affiliation was considered and voted on at the state convention and a report was made to the membership by DiMienco shortly following the 1976 convention. Thus, for at least approximately 3 years, "affiliation" was a concern of the membership. It is evident from the foregoing that the affiliation with the SEIU was contemplated and discussed by the LPNNY, including the Jefferson County division for a period of years; that the Jefferson County division of LPNNY, comprised of Respondent's employees, had an opportunity to participate and indeed did participate in the deliberations regarding the question of whether to permanently affiliate. The affiliation with the SEIU therefore did not constitute, as described in Respondent's brief, a part of a "Cabal lead by Ms. McQueer which HOUSE OF THE GOOD SAMARITAN 545 conducts and directs union business." On the contrary, it was accomplished in a democratic manner, with the knowledge, participation, and apparent approval both in the planning stages and on the decisive vote of rank-and- file members, including the delegates and alternates who represented Respondent's employees at the 1978 LPNNY convention. The refusal to bargain Respondent had knowledge of the 1976 temporary af- filiation agreement through Alfreda Shippee and Thomas Pilgemeyer. With this knowledge, Respondent negotiated a new contract with the Union in 1976. And from that date until June 1978, Respondent recognized and bar- gained with the Union and deducted dues which in part went to SEIU under the temporary affiliation agreement. It was not until 2 years after the temporary affiliation agreement had been in effect that Respondent questioned its obligation to bargain. Although the doctrine of estoppel does not strictly apply in that it was a temporary affiliation agreement rather than a permanent one, Respondent did let the Union believe by its silence in the matter and the con- tinuance of its recognition and bargaining with the Union that it had no doubt as to the affiliation nor the manner in wich it was effected. With respect to the latter, it is safe to say that if the Union suspected that Respondent would scrutinize the voting procedure as it did it may have altered its affiliation procedure to comport with Respondent's criticism of the 1976 vote. However, Re- spondent recognized the affiliation for 2 years, albeit a temporary affiliation, and then challenged it at the expi- ration of the collective-bargaining agreement in 1978. I therefore conclude that, by refusing to recognize and bargain with LPN-TECH, Respondent is in violation of Section 8(a)(5) and (1) of the Act. I shall therefore rec- ommend to the Board that an Order issue requiring Re- spondent to recognize and bargain with the Union upon request. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, 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 of commerce. THE REMEDY Having found that Respondent has engaged in unfair labor practices prohibited by Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record herein, I make the following: CONCIUSIONS OF LAW 1. The House of the Good Samaritan and The Samari- tan-Keep Nursing Home, Inc., is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. All full-time and regular part-time licensed practical nurses, including graduate licensed practical nurses per- mitted to practice as licensed practical nurses (excluding supervisors, technical employees, clerical employees, ser- vice and maintenance employees, RNs, and all others), employed by The House of the Good Samaritan and the Samaritan-Keep Nursing Home, Inc., 830 Washington Avenue and 133 Pratt Street, Watertown, New York. 3. Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 4. The Licensed Practical Nurses of New York, Inc., was at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 5. Service Employees International Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 6. By refusing to recognize Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, as the collective-bargaining representative of Respondent's employees in the foregoing bargaining unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " The Respondent, The House of the Good Samaritan and The Samaritan-Keep Nursing Home, Inc., Water- town, New York, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, as to wages, hours, and other terms and conditions of employment covering employees in the unit herein found appropriate. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, as the exclu- sive representative of the employees in the appropriate " In the event no exceptions are filed as provided b) Sec 10246 of the Rules and Regulations of the National ahbor Relations Board, the findings, conclusions, and recommended Order herein shall, as pror ided in Sec 102.48 of the Rules and Regulations. be adopted hb the Board and become its findings, conclusions. and Order, and all objections thereto shall he deemed waived fir all purposes 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit found herein and, if an agreement is reached, embody in a written and signed memorandum the agree- ment so reached. (b) Post at its premises in Watertown, New York, copies of the attached notice marked "Appendix A."12 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by a rep- resentative of Respondent, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that unless, within the aforesaid 20-day period, Respondent notifies the Region- al Director, in writing, that it will comply with the Order recommended herein, the National Labor Rela- tions Board will issue an Order requiring Respondent to take the action recommended. I 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NOTICES To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain collectively with Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, as to wages, hours, and other terms and conditions of employment, covering employees in an appropriate bargaining unit. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Sec- tion 7 of the Act. WE WILL, upon request, recognize and bargain collectively with Licensed Practical Nurses and Technicians of New York, Inc., Local 721, S.E.I.U., AFL-CIO, as the exclusive representative of the employees in an appropriate bargaining unit and, if an agreement is reached, embody it in a written and signed memorandum. The appropriate unit is: All full-time and regular part-time licensed prac- tical nurses, including graduate licensed practical nurses permitted to practice as licensed practical nurses (excluding supervisors, technical employ- ees, clerical employees, service and maintenance employees, RNs, and all others), employed by The House of the Good Samaritan and The Sa- maritan-Keep Nursing Home, Inc., 830 Washing- ton Avenue and 133 Pratt Street, Watertown, New York. THE HOUSE OF THE GOOD SAMARITAN AND THE SAMARITAN-KEEP NURSING HOME, INC.