Hermitage Hospital Products

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hermitage Hospital Products, a Division of Hermi- tage, Inc. and United Steelworkers of America, AFL-CIO, Local Union 14120. Case I-CA-13577 November 8, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY. AND TRIUESDALE On August I, 1978, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 and to adopt his recommended Order. 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, Hermitage Hospital Products, a Division of Hermitage, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not found herein. I Respondent has requested oral argument. This request is hereby denied. as the record, exceptions, and brief adequately present the issues and posi- tions of the parties. 2 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE MARION C. LADWIG. Administrative Law Judge: This case was heard at New London, Connecticut, on April 17, 1978. The charge was filed by the Union on September 2, 1977,' and the complaint was issued on October 27. On July 22, the day after the Company 2 canceled a be- lated meeting with the Union to begin negotiating a new collective-bargaining agreement, the new company presi- dent held an employee meeting and expressed his antiun- ion attitude. On August 8 and 9, following the July 31 expiration of the union agreement, the Company approved the circulation of a decertification petition in the plant. It later withdrew recognition of the Union, claiming doubts of the Union's majority status. The primary issues are whether the Company (a) threatened closure of the plant, (b) unlawfully permitted circulation of the decertification petition during working time, and (c) unlawfully withdrew recognition of the Union, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the General Counsel's brief and the Company's arguments at the hearing, I make the following: FINDINGS OF FACT 1. JURISDICTION The Company, a Connecticut corporation, is engaged in the manufacture of surgical dressings and related products at its plant in Niantic, Connecticut, where it annually ships goods valued in excess of $50,000 outside the State. The Company admits, and I find, that it is engaged in com- merce within the meaning of the Act, and I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 11 ALLEGED UNFAIR LABOR PRACTICES Coercion of Employees A. Threat of Plant Closure The union agreement, effective from August 1, 1975, un- til July 31, 1977, covered an appropriate unit of all employ- ees at the Niantic plant, excluding executives, office and clerical employees, sales employees, guards, watchmen, firemen, and foremen, foreladies, and other supervisors. On May 23, the Union sent the Company a termination notice, offering to begin negotiations for a new agreement. About the first week in July, Company Attorney Mau- rice Epstein telephoned the Union's international staff rep- resentative, Francis McDermott, and notified him that for- mer President Reuben Pitts was no longer in charge of the Niantic plant, that President Williams Pitts would be tak- ing over the plant, and that "from the looks of things they weren't going to bargain" with the Union. (Epstein repre- sented the Company at the trial and did not testify. I credit this testimony given by McDermott, who impressed me as being a credible witness.) Epstein added that the company officials "didn't want a union, they didn't need a union." All dates are in 1977, unless otherwise stated. 2 The name of the Respondent Company was corrected at the hearing to reflect the change on January 1, 1978, of its status as wholly owned subsid- iary to that of a division of the parent corporation 216 HERMITAGE HOSPITAL PRODUCTS However, he stated that "it was a little unsettled at that time" and promised "to make a further effort to see if he could get us across the bargaining table," indicating that "we had had a relationship . . . for a good number of years." Within a few days, Epstein called McDermott back, again indicated that "this Company is not going to bargain, they don't feel that they need the Union, they can get along without the Union. They are from a right-to- work State ... from the South and they just don't want to bargain . . . but . . . I will try like hell." McDermott re- sponded that Epstein had been with them a lot of years, "See what you can do." In their next telephone conversation, about July 15, Company Attorney Epstein told Union Representative McDermott "we are doing business with a different man now. Reuben [Pitts] appreciated sitting across the table and negotiating a contract; now we've got different manage- ment," and "an altogether different opinion." However, Epstein said he would try to set up a meeting, and agreed with McDermott that Thursday, July 21, would be conven- ient. Thereafter Epstein called back, advised that a meeting had been set up with McDermott and the employee com- mittee at 2 p.m. on July 21, and persuaded McDermott to vary the usual procedure and present Epstein with the Union's proposal before the negotiating meeting. On Thursday, July 21, the Company canceled the sched- uled negotiations. Company Attorney Epstein met private- ly with the company officials and discussed the Union's proposal. Instead of recommending that they meet with the Union, Epstein (as Robert Crawford, the new general man- ager, testified on direct examination) "outlined various courses of action that were open to us, that we could either negotiate a new contract, we could meet and discuss it, or we could, if we felt that the Union no longer represented the majority of our employees, there were several methods that we could consider." The officials decided not to meet with the Union that afternoon and to defer final decision on whether to continue recognizing the Union. Meanwhile that evening, Epstein telephoned Representative McDer- mott and told him that "from all indications the Company wasn't going to bargain" with the Union. The next morning, July 22, President Pitts met with about 15 employees from about 9:45 a.m. until noon. As credibly testified by employee Betty Biggie (who impressed me as being an honest, forthright witness), Pitts stated that he intended to expand the Niantic plant and that they were moving the salesmen from New York to Niantic. "He said that there was a union here, that he would have to cope with it, but he didn't like it, he didn't believe in unions." He then threatened that "if this [union] was ever taken out that he would never have another union in there. that he would close the shop first [emphasis supplied], and that they had closed one from trying to get a union in or something down south." (The evidence does not reveal what plant he was referring to.) Pitts explained that "he did not believe in any employee putting grievances down on a piece of paper and sending them in there, and having outside help come in to run his plant." In answer to a question about their contractual benefits if the plant went nonunion, Pitts stat- ed that "no benefits would be taken away under this con- tract. They wouldn't take nothing away from us." (Em- ployee Helen Howard recalled that Pitts said "he didn't believe in a union, but as long as it was in there . . . he would go along with it. But if ever the union left, he wouldn't let another one come in . . . if another union tried to come in he would close the shop if he had to.") Pitts testified that "we had just had the [July 211 meeting with you [Attorney Epstein] on the Union .... And rath- er have a plant without a union that with a union." When- uld asked about saying anything in the speech about clos- ing the plant in order to keep a union out, he claimed, "My personal intentions were not to make any statements of that sort .... I am not a good speaker .... I am not saying I should be excused from any testimony that I said but it is certainly not my intention to say that I would close down the plant simply because there is a union in it." He later denied making any reference to closing the plant in order to keep a union out. (He impressed me as being less than candid, and I discredit his denials.) Although President Pitts did not threaten to close the Niantic plant in order to eliminate the Union, the credible evidence reveals that he did threaten plant closure to keep out another union. I find that this threat, particularly in the context of his antiunion statements and the Company's cancellation of the negotiating meeting with the union committee and representative the day before, was coercive and violated Section 8(a)(l) of the Act. (The General Counsel contends in his brief that Pitts solicited grievances at the meeting and made promises to correct them without the assistance of the Union. However, such a violation is not alleged in the complaint.) Following this threat, few employees indicated an inter- est in joining another union. Employee Alba Foltz (who had previously opposed the Union) contacted an Interna- tional Ladies' Garment Workers' Union (ILGWU) repre- sentative who met with employees about August 2 and again on August 4. Fewer than 15 employees attended the first meeting, and 28-only 15 percent of the 187 bargain- ing unit employees-attended the second meeting. (Repre- sentative McDermott complainted to the ILGWU repre- sentative, "Don't you know this is an organized shop?" and asked if the ILGWU was "knocking on the door to help the Company get an open shop." The ILGWU immedi- ately withdrew.) B. Circulation of Decertification Petition 1. Company approval While the Company was discussing at its Camden, S.C., headquarters the alternatives which it had received from Attorney Epstein, Vice President Arthur Breen was giving union opponent employee Foltz permission to circulate copies of a union decertification petition in the plant. Despite Foltz' efforts as a defense witness to conceal the part the Company played, the evidence shows that the Company both gave its approval before the petitions were drafted and at least acquiesced in the wording and circula- tion of the petitions. The copies of the petition read: THIS PETITION IS FOR THE PURPOSE OF GETTING OUR UNION OUT. IN ORDER TO DO 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THIS WE STA Y WITHOUT A UNION FOR A YEAR AND GIVE THE COMPANY A TRIAL PE- RIOD TO PROVE THEY CAN GIVE US BETTER BENEFITS THAN THE UNION. IF NOT THEN WE GET THE NEW UNION IN. I'M SURE THE COMPANY WILL PROVE ITSELF, BECAUSE THEY DON'T WANT A UNION. IT'S YOUR DE- CISION TO SIGN OR NOT AND DATED. THIS HAS OFFICE APPROVAL. THANK YOU. lEmpha- sis supplied.] It is clear from the wording of the petitions ("This has office approval") that employee Foltz had received compa- ny approval before she typed them. (Foltz, who appeared to be a most untrustworthy witness, first denied that she talked to Vice President Breen about the petitions "at any time" and at one point claimed that "management knew nothing about this petition until August 10"-after the pe- titions were signed on August 8 and 9-and further claimed that management had "no idea" that she was cir- culating the petition.) Breen, when asked on the stand if Foltz or anyone else spoke to him about circulating a peti- tion, admitted that "they asked to do it" and he approved. (And, despite her other testimony, Foltz herself acknowl- edged-when pointedly asked if she talked to Breen before circulating the petitions-"I went in there and I told him I was going to circulate a petition. I had to have an okay before anything goes in the mill.") Moreover, Foltz and the Company were using a common approach in opposing the Union. As quoted above, Foltz typed on the petitions (after getting Breen's approval to circulate them), "We stay with- out a union for a year and give the Company a trial period to prove they can give us better benefits than the Union. If not then we get the new union in . . . . This has office approval." It is undisputed that similarly on August II or 12, after the signed petitions were turned in to the Compa- ny, General Mangaer Crawford told employees in a meet- ing (as credibly testified by employee June Madden) that "we didn't need a union" and that "if we would go along with the Company" and "let them work out things and problems" for "approximately a year," then "if the em- ployees were not satisfied," they could try to "get another union in." 2. Circulated on company time Following the ILGWU withdrawal after its August 4 meeting, employee Foltz contacted the Board regional of- fice, talked to Vice President Breen, and arranged for sev- eral other employees to assist her in soliciting signatures on the union decertification petitions, which she typed at home, asserting, "This has office approval." It is undisputed, as defense witness Foltz acknowledged, that there is a company policy against solicitations in the plant and that there are no-solicitation signs "all over the mill." There are also strict rules against employees being away from their work. Foltz revealed, "I was three minutes late last week coming down from a coffee break and my boss came up and got me." Employee Donna Goodall, an- other defense witness, acknowledged her awareness of these rules, testifying that the employees "can't leave" their departments (during working time). On August 8, however, the Company permitted employ- ee Foltz and other employees to be away from their work and to solicit decertification signatures on company time. Foltz testified that she went "on all the floors" of the plant and told employees when soliciting their signatures that "this has office approval." She acknowledged that she did not request permission to leave her work. About 9:15 that morning (as employee Biggie credibly testified, although she did not remember the correct date), Foltz was on the second floor with a copy of the decertification petition. Biggie, who was going to the cafeteria on her 9:15-9:30 a.m. break, realized at the time that Foltz was away from her first-floor work station during working time because the first-floor break period was later (from 9:35 to 9:50 a.m.). Nearly an hour had passed when first-floor employ- ee June Madden saw Foltz and Josephine Novick (a first- floor employee assisting Foltz in soliciting signatures) re- turn to work at 10:10 a.m. The supervisors did nothing to require the antiunion employees to remain on the job or to stop soliciting signatures during working time. Two other employees soliciting decertification signatures that day were Donna Goodall and Joyce Brown. About 1:10 p.m., after the lunch period, employee Madden ob- served Goodall in Brown's department. As Madden (who impressed me favorably as a witness) credibly testified, she saw Goodall give employee Cyril Lucier a copy of the peti- tion (apparently the one being circulated in Brown's de- partment) and heard her ask him to come over and sign it. At the time, Lucier was talking to the supervisor, Leo Cor- mier. Although both Goodall and Lucier were on company time, Cormier said nothing. As requested, Lucier went over and signed the decertification petition, within view of the supervisor. (Goodall acknowledged that she, a longtime opponent of the Union, had talked to Lucier about the ILGWU, but she denied that she solicited his signature on the petition. I discredit the denial.) That same afternoon, after leaving work at the end of her day shift, employee Goodall returned to her depart- ment and solicited the signatures of evening shift employ- ees on a separate copy of the decertification petition. On cross-examination, she at first readily acknowledged that she was soliciting the signatures on the employees' working time. She testified, "They were working, but they weren't taken from their jobs," and that was right, she "went up to them at each work station." She next acknowledged that the supervisor had seen her doing this. Thent, apparently recalling the company defense, she changed her testimony and claimed, "No, as a matter of fact, I made a mistake on that. I left that paper with" another employee and asked her to get the signatures, "but wait until her coffee break or lunch hour." (I credit her first version of what happened.) Most of the signatures were obtained on August 8, the first day of the solicitations. (A total of 68 signatures were dated August 8, I was undated, and 6 were dated August 9. There were 187 bargaining unit employees at the time.) On the second day, employee Madden heard employee Foltz being called to the office after lunch. Foltz returned to the first floor about 15 or 20 minutes later with a copy of the petition in her hand and spoke to employee Novick at Novick's machine for about 2 minutes. I note, in this con- 218 HERMITAGE HOSPITAL PRODUCTS nection. that the copy of the petition which Novick and Foltz signed at the top had one signature dated August 9 added at the bottom. (Foltz, who appeared to be attempt- ing to conceal what actually happened, gave much conflict- ing testimony about when she turned in the petition and about her conversations with Vice President Breen. After repeatedly testifying that she turned in the August 8 peti- tions on that day, giving them to Breen, she later claimed that "management knew nothing about this petition until August 10." She testified that she did not turn in the peti- tion circulated by employee Brown on August 8 "because I still had to get more signatures . . . because I needed one- third" of the employees. Yet she testified, "I had no idea how many people were employed in the plant, made no attempt to find out," and "just took it for granted that . . . when I turned them in to the office they could tell me whether it was one-third or not." Still later she testified that she "just thought I would get whatever signatures I could .... I don't know how many were employed in that plant, she never made any inquiry, and "No," it never oc- curred to her to make that inquiry.) About August I, after Union Representative McDer- mott returned from a short vacation, he complained to Company Attorney Epstein that a petition was being pushed around the plant "on company time." On August II and 12, General Manager Crawford met with all of the employees. In one of these meetings, as employee Madden credibly testified, employee Goodall (who had already ob- tained some of the decertification signatures) asked Craw- ford how they could get out of the Union. Ignoring the fact that the Company had already received the decertification petitions from employee Foltz, Crawford answered that "he didn't see why anybody had to belong to something that they didn't want to," that 'they could circulate a peti- tion" to go to the NLRB and that "if they circulated the petition it would have to be done on their own time." (I infer that before Crawford held this meeting, the attorney had cautioned him against supervision permitting such so- licitation on company time.) At the hearing, employees Foltz and Goodall denied that the petitions were circulated during working time, and Foltz and Vice President Breen claimed that Breen permit- ted the circulation only on the employees' own time. I find that this testimony was fabricated as an afterthought, in the Company's defense. (I also discredit Foltz' denial that she was "aware of the fact that management didn't want the Union in the plant"--contrary to what she typed on the petitions, after talking to Vice President Breen. that "I'm sure the Company will prove itself, because they don't want a union," and that "this has office approval." I fur- ther discredit, as a great exaggeration, Foltz' claim that "there was about 75 girls from the mill" at the second ILGWU meeting on August 4-nearly three times the ac- tual number of 28.) 3. Contentions and concluding findings The General Counsel contends that in the context of the Company's refusal to meet with the Union and President Pitts' expression of union hostility, the employees knew that employee Foltz' activities had been given tacit ap- proval by way of the fact that she had been given free rein of the plant in order to circulate the petition. The General Counsel also contends that "the Employer was fully aware of which employees had signed the petition," and "the fact that Foltz had written 'this has company approval' over the face of the petition constituted unlawful interference." The Company, on the other hand, contends that the petition was "circulated entirely on the initiative of the employees," and "as far as the company knows, it is not true that it was done during working hours." It was clear to the employees on August 8 and 9 that the Company was sponsoring the decertification effort. The Company had canceled the July 21 negotiating meeting with the union committee and staff representative, and the new company president had expressed his union hostility to a group of employees and had threatened them with plant closure to keep out another union. Then on August 8, despite the no-solicitation signs around the plant and the strict rules against leaving work, the company supervisors permitted antiunion employees (who had previously op- posed the Union unsuccessfully) to engage in a working time campaign to solicit signatures on the union decertifi- cation petitions. Antiunion employee Foltz was allowed to leave work, without permission, for at least 55 minutes at one time (20 minutes before and 20 minutes after her break period) and to solicit decertification signatures on all three floors of the plant. Antiunion employee Goodall, during working time, was permitted to solicit and obtain the signa- ture of an employee who was talking to one of the supervis- ors. Goodall was also permitted to return to her depart- ment on the following shift, to go to the work stations of the employees, and to solicit their signatures while they were working. The following day, Foltz was called into the office during working time and was seen returning to her department 15 or 20 minutes later with a copy of the peti- tion to try to get more signatures-after first conferring on the job with antiunion employee Novick, who had been assisting her in soliciting signatures. The petition stated that the Company did not want a union and specifically stated, "This has office approval." When soliciting the employees' signatures, employee Foltz assured them that it had "office approval." Thus the employees were placed in the position of either signing the decertification petition or, by omitting their sig- natures, running the risk of incurring the Company's disfa- vor. The fact that the decertification effort failed to per- suade a majority of the employees to turn against the Union does not disprove its tendency to coerce the em- ployees. I therefore find that under these circumstances, includ- ing the Company's refusal to meet with the Union, its ex- pressions of union opposition, its threat of plant closure, and its no-solicitation rule and rules against leaving work, the Company coerced the employees in the exercise of their Section 7 nghts by permitting employees on August 8 and 9 to circulate a union decertification petition during work- ing time in work areas on the Comany's premises, thereby violating Section 8(a)(1 ) of the Act as alleged in the com- plaint. The complaint also alleges that General Manager Craw- ford on August 12 "created an unlawful impression of sur- 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD veillance by offering to return signed authorization cards to employees, and requesting the employees to destroy them." However, I discredit employee Frankie Malombe's testimony that she saw about 20 ILGWU cards in Crawford's hand at the meeting she attended, that Craw- ford said the cards in his hand had been signed, and that he "advised them to take these cards back and destroy them." I credit instead Crawford's denials and dismiss this allegation in the complaint. (It is undisputed, however, that Crawford told employees that they "didn't need a union" and that if the employees "would go along with the Com- pany" and let the Company "work out things and prob- lems" for "approximately a year," then "if the employees were not satisfied," they could try to "get another union in.") C. Refusal To Bargain Withdrawal of recognition Following their July 21 meeting with counsel (when he gave them alternatives to consider and when they refused to meet with the Union that afternoon), President Pitts and General Manager Crawford met at the Camden headquar- ters and discussed the pros and cons with other officials. On August 11, as Crawford credibly testified, he an- nounced to counsel the Company's decision to withdraw recognition from the Union because "we wanted to find out what the people really wanted in Niantic." Crawford then met with all of the employees, in 8 or 10 groups. That was when he told employees in at least one of the groups that they did not need a Union and that they should go along with the Company for abour a year without a union, as discussed above. Finally on September 2, Attorney Ep- stein sent the Union a letter stating that the Company "doubts that your union represents a majority of its em- ployees . . . and is therefore unwilling to recognize your union . . until the representation question is determined by an N.L.R.B. election." (The Company did not file a petition for an election.) When asked by company counsel at the trial the reasons for withdrawing recognition, Generai Manager Crawford answered: (1) "Well we had heard from Mr. Breen [vice president and plant manager] and other people in the plant, the payroll girl, for instance, said that people that belonged to the Union were constantly complaining about the dues that were being deducted. There seemed to be a lot of unrest among union members." (2) "Mr. Breen got the feeling--I didn't quiz him for details, but I didn't know anybody at that time-that there were a substantial num- ber of people within the union that wanted out, and non- union members who felt that it was an obstacle." (3) There was the (August 3) "letter from the Ladies Garment Union" (which stated, "We have begun an organization drive"). (4) "There may have been two or three other things," including the fact that dues checkoffs were "in the 70 range," while there were "190 or so" employees in the bargaining unit. "And simple arithmetic told us that this also meant to us that a number of people did not want the Union." Crawford added, "I had heard previously that there was never a majority." It is clear that these purported reasons, singly or in com- bination, do not rebut the presumption of majority status following the expiration of the Union's lawful 1975-78 contract. As held in Terrell Machine Company v. N.L.R.B., 427 F.2d 1088, 1090 (4th Cir. 1970), "Upon expiration of the original certification year, a rebuttable presumption of rep- resentative status exists, and it is sufficient to establish pri- mafacie a continuing obligation to bargain .... The pre- sumption may be overcome . . . if the employer demonstrated that the Union, in fact, no longer enjoyed majority support on the date of the refusal to bargain, or that the refusal to bargain was predicated upon a reason- ably grounded good faith doubt of majority support." Also as held in N.LR.B. v. Gulfmont Hotel Company, 362 F.2d 588, 589 (5th Cir. 1966), "any doubt as to the continuing majority status .. may not depend solely upon unfound- ed speculation or a subjective state of nmind." Concerning (1), that an undisclosed number of employ- ees were complaining about dues and "there seemed to be a lot of unrest among union members," the complaining does not demonstrate that the employees no longer wish union representation, and the seeming unrest is merely subjective. Concerning (2), that Vice President Breen "got the feel- ing" that "a substantial number" of union members "want- ed out" and that nonmembers considered the Union an obstacle, these "feelings" are also clearly subjective. Concerning (3), the receipt of the notice of the ILGWU's organizing effort, very few employees attended the ILBWU's August 2 and 4 organizing meetings (even if the Company received reports of the meetings), and on August 5 the ILGWU notified the Company of its withdrawal, stating that it "no longer is able to consider representing your employees." Furthermore, the Company revealed at the time that it did not believe that the ILGWU repre- sented a majority of its employees. On August 8, before receiving the August 5 disclaimer, President Pitts wrote the ILGWU a letter, stating, "Please be advised that workers at Hermitage Hospital Products are not interested in being represented by the ILGWU, AFL-CIO." Concerning (4), that less than a majority were on check- off (actually 37 percent, 69 out of 187 employees in the bargaining unit), that "simple arithmetic told us that this also meant to us that a number of people did not want the Union," and that Crawford had heard that the Union nev- er had a majority, it has often been held that failure to pay dues does not necessarily indicate lack of union support. As held in Terrell Machine Company v. N.L.R.B., supra, 427 F.2d at 1090: "A showing that less than a majority of the employees in the bargaining unit were members of the union or paid union dues was not the equivalent of show- ing lack of union support. Manifestly [where not required] many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they may desire continued representation by it." In N.L.R.B. v. Gulfmont Hotel Company, supra, 362 F.2d at 592, where there were 77 names ("probably correc- tible to 75") on the noncompulsory checkoff list, the court held that "comparison of the checkoff lists and a compari- 220 HERMITAGE HOSPITAL PRODUCTS son of additions and subtractions from the list, in a legal sense, showed nothing with reference to what percentage of the 186 employees . . . still wished to have their bargaining unit represented by the unions." The Union (the successor of District 50, which had been certified in a state proceeding about 1958) had never ob- tained a union-shop provision in its contracts with the Company and had never secured checkoff authorizations from a majority of employees. (In April, when there were 206 employees, the Union had 75 checkoff cards, or 36.4 percent; in August, when there were 187 employees, the Union had 69 cards, or 36.89 percent. Between January 1976 and June 1977, the number of checkoff cards ranged from 71 to 75.) It is undisputed that "two contracts" be- fore, when the Company questioned the Union's majority status (because of the limited number of checkoffs), the Union offered to consent to an election, stating, "If we win the election, you give us the union shop. If we lose the election, you have the plant." The Company refused. In this connection, I note that in Attorney Epstein's opening argument at the hearing, he implied continuing union sup- port through the years by conceding that "there was no objection from the employees to the Company's continuing to sign contracts because they were not required to join." Furthermore, at the time the Company announced to At- torney Epstein on August II that it had decided to with- draw union recognition, the Company had a strong indica- tion that a majority of the employees continued to support the Union. Despite the coercive circumstances under which signatures on the August 8 and 9 decertification petitions were solicited (as discussed above), the antiunion employ- ees were successful in obtaining only 75 signatures (40 per- cent of the 187 employees)-the remaining 60 percent re- fusing to turn against the Union. Accordingly, I find that the Company has failed to rebut the presumption of the Union's continued majority repre- sentative status either by producing competent evidence that the Union in fact did not represent a majority on Au- gust 11, when the Company announced its withdrawal de- cision, or by establishing a good-faith and reasonably grounded doubt. Moreover, I find that even if the Union had lost its majority status on August II11, or if the Com- pany's refusal to bargain was predicated upon a reasonably grounded doubt of majority status, "the majority issue must not have been raised by the employer in a context of illegal antiunion activities . . . aimed at causing disaffec- tion from the union or indicating that in raising the majori- ty issue the employer was merely seeking to gain time in which to undermine the union." Celanese Corporation of America, 95 NLRB 664, 673 (1951), as quoted in Colonial Manor Convalescent & Nursing Center, 188 NLRB 861 (1971). In the present case, as found, the Company en- gaged in unfair labor practices (threatening plant closure in the context of antiunion statements and after canceling a scheduled negotiating meeting, and permitting the circula- tion of decertification petitions under coercive circum- stances) which are of "such a character as to either affect the Union's status, cause employee disaffection, or improp- erly affect the bargaining relationship itself." Ibid. Under these circumstances, the Company was precluded from re- butting the Union's presumed majority. I therefore find that the Company violated Section 8(a)(5) and (1) of the Act by announcing on August I1 that it was withdrawing recognition from the Union and there- after refusing to bargain with the Union. Having so found, I also find that on December 8, when it granted a unilateral 9-percent wage increase to all of the bargaining unit em- ployees, retroactive to August I, it further violated Section 8(a)(5) and (1), as alleged in the complaint. CONCLUSIONS OF LAW 1. By threatening plant closure and by permitting the circulation of union decertification petitions under coer- cive circumstances, the Company engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)( ) and 2(6) and (7) of the Act. 2. By withdrawing recognition of the Union and refus- ing to bargain since August 11, 1977, the Company vio- lated Section 8(a)(5) and (I) of the Act. 3. By granting a unilateral 9-percent wage increase to all bargaining unit employees on December 8, 1977, the Com- pany further violated Section 8(aX5) and (1) of the Act. 4. The General Counsel failed to prove that the Compa- ny unlawfully created an impression of surveillance of the employees' union activities. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act as set forth in the Order below. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, Hermitage Hospital Products, a Divi- sion of Hermitage, Inc., Niantic, Connecticut, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Threatening to close the plant to keep out a union. (b) Coercing employees to sign a union decertification petition. (c) Unlawfully withdrawing recognition of, or refusing to bargain with, United Steelworkers of America. AFL- CIO, Local Union 14120, as the exclusive representative of its employees in the following appropriate unit: All employees at the Employer's Niantic, Connecticut plant, excluding executives, office and clerical em- ployees, sales employees, guards, watchmen, firemen, In the event no exceptions are filed as provided b) Sec 102.46 of the 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 b) the Board and become its findings. conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 221 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and foremen. foreladies, and other supervisors as de- fined in the Act. (d) Unilaterally granting any future wage increase to bargaining unit employees without notifying and bargain- ing with the Union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union as the exclusive representative of the employees in the above-described appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its plant in Niantic, Connecticut, copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (c) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not specifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to close our plant to keep out a union. WE WILL NOT coerce any of our employees to sign a union decertification petition. WE WILL NOT grant any future wage increase without notifying and bargaining with the Union. WE WIl.L NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL bargain with United Steelworkers of Amer- ica, AFL-CIO, Local Union 14120, and put in writing and sign any bargaining agreement we reach covering these employees: All employees at our Niantic, Connecticut plant ex- cluding executives, office and clerical employees, sales employees, guards, watchmen, firemen, and foremen, foreladies, and other supervisors. HERMITAGE HOSPITAL PRODUCTS, A DIVISION OF HERMITAGE. INC. 222