Doctors Hospital

DOCTORS HOSPITAL Anton Notey, et ano, a Co-Partnership , d/b/a Doc- tors Hospital, Freeport, New York and Licensed Practical Nurses of New York, Inc., and Licensed Practical Nurses' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union, Party to the Contract. Licensed Practical Nurses' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union and Licensed Practical Nurses of New York, Inc. and Anton Notey, et ano , a Co-Partnership, d/b/a Doctors Hospital , Freeport, New York, Party to the Contract . Cases 29-CA-1647 and 29-CB- 634 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN AND JENKINS On January 8, 1970, Trial Examiner Lowell Goer- lich issued his Decision in the above-entitled proceed- ing, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Respondent Union, respectively, filed exceptions to the Trial Examiner's Decision and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions,' and recommendations' of the Trial Examiner, as modified herein. ' In adopting the Trial Examiner's ultimate findings and conclusions, we do not adopt all of his comments with regard to the interpretation and application of the principles set forth in the Supreme Court's decision in NLRB v Gissel Packing Co, Inc, 395 US 375 However, we agree with the violations found by the Trial Examiner stemming from Respondent Employer's recognition of Respondent Local 1115 at a time when a real question concerning representation existed ' Contrary to the Trial Examiner and in agreement with the General Counsel's exceptions, we believe that the status quo will best be restored ORDER 147 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that Respondents, Anton Notey, Et Ano, a co-partnership, d/b/a Doctors Hospital, Free- port, New York, its officers, agents, successors, and assigns, and Licensed Practical Nurses' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Insert the following as paragraph A, 2,(c) and renumber the present paragraph A, 2,(c) as A, 2,(d): "Pay to each of the employees, who revoked their Local 1115 checkoff authorizations, all moneys with- held and deposited in an escrow account from the date of receipt of such revocation." 2. Delete paragraph B, 2,(a) and reletter the remain- ing paragraphs accordingly. 3. Substitute attached Appendixes A and B for those attached to the Trial Examiner's Decision. by requiring the Respondent Employer herein to reimburse the seven employees (L P N 's Amarante, Daller, Key, Marturano, Pugh, Tudor and Gibson) from whom dues were deducted and held in escrow subsequent to their written revocation of dues checkoff authorizations Accordingly, we will amend the Trial Examiner's Recommended Order as requested by the General Counsel Additionally, inasmuch as the employees did enjoy the benefits of the Respondent Employer's contributions to the welfare trust fund, reimbursement of such contributions to the employees would amount to unjust enrichment and is deemed, under all the circum- stances, to be unwarranted The Trial Examiner's Recommended Order will be amended in this respect APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or contribute support to the Local 1115 or any other labor organization by recognizing such labor organization as the exclusive representative of our licensed practical nurses for the purpose of collective bargaining at a time when such labor organization has not been designated by a majority of such employees as their exclusive representative. WE WILL NOT assist or contribute support to Local 1115 or to any other labor organization by entering into a collective-bargaining agree- ment with such organization as exclusive repre- sentative of our licensed practical nurses at a 185 NLRB No. 31 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time when there exists a real question concerning APPENDIX B representation. WE WILL NOT give effect to our contract of April 27, 1969, with Local 1115 covering the licensed practical nurses or to any renewal, extension, modification, or supplement thereof unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL pay to each of the employees of Doctors Hospital all union dues deducted and held in an escrow account subsequent to receipt of their written notification that they desired to withdraw their Local 1115 checkoff authoriza- tions WE WILL withdraw and withhold all recogni- tion from Respondent Local 1115 as the exclusive representative of its licensed practical nurses for the purpose of collective bargaining unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. ANTON NOTEY, ET ANO, A CO-PARTNERSHIP, D/B/A DOCTORS HOSPITAL (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept exclusive recognition as the representative of the licensed practical nurses employed by Doctors Hospital or any other employer for the purposes of collective bargaining at a time when we have not been designated as the exclusive representative of such employees. WE WILL NOT enter into a collective- bargaining agreement with Doctors Hospital or any other employer as the exclusive representative of any of its employees for the purpose of collec- tive bargaining at a time when there exists a real question concerning representation. WE WILL NOT give effect to our contract of April 27, 1969, with Doctors Hospital or to any renewal, extension, modification, or supplement thereof unless and until we have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL NOT in any like or related manner restrain or coerce employees of Doctors Hospital in the exercise of their rights guaranteed in Section 7 of the Act. LICENSED PRACTICAL NURSES' GUILD OF LOCAL 11 15 NURSING HOME-HOSPITAL-SENIOR CITIZENS HOTEL UNION (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. DOCTORS HOSPITAL TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: In Case 29-CA- 1647 the charge filed on April 28, 1969, was served by registered mail on Respondent Anton Notey, Et Ano, a Co-partnership, d/b/a Doctors Hospital, Freeport, New York, sometimes referred to herein as Doctors Hospital, and the Respondent, Licensed Practical Nurses' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union, sometimes referred to herein as Local 1115, on the same date. The first amended charge filed on May 19, 1969, was served by registered mail on Respondent Doctors Hospital and Respondent Local 1115 on the same date. In Case 29-CB-634 a charge was filed on May 19, 1969, and served on the Respondent Doctors Hospital and the Respondent Local 1115 on the same date. All charges were filed by the Licensed Practical Nurses of New York, Inc., sometimes referred to herein as the Associa- tion. An Order Consolidating Cases, Complaint and Notice of Hearing was issued on July 31, 1969 In the complaint the Respondent Doctors Hospital was charged with viola- tions of Section 8(a)(1), (2), and (3) of the National Labor Relations Act, as amended, herein called the Act. The Respondent Local 1115 was charged with the violation of Section 8(b)(l)(A) and 8(b)(2) of the Act. The Respondents filed timely answers denying that they had engaged in or were engaging in the unfair labor practices alleged. The cases' came on for hearing on September 8, 9, 10, 11, and 12, 1969, and October 13, 14, and 15, 1969,2 at Freeport, Long Island, New York Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs and contentions of the parties have been carefully considered by the Trial Examiner and the issues material to this decision have been resolved. Upon the whole record and upon his observation of the witnesses the Trial Examiner makes the following: ' Cases 29-CA-1647 and 29-CB-634 had been consolidated with Cases 29-CA-1692 and 29-CB-646 At the opening of the hearing the General Counsel moved that the consolidated complaint in Cases 29-CA-1692 and 29-CB-646 be severed from the consolidated complaint in cases 29-CA-1647 and 29-CB-634 on the ground that a settlement had been reached in Cases 29-CA-1692 and 29-CB-646 In these cases Doctors Hospital and the Association were named as Respondents Local 1115 was the Charging Party Local 1115 objected to the granting of the motion and the Trial Examiner after hearing arguments of counsel reserved ruling Later in the hearing Local 1115 withdrew its objections, the motion was granted by agreement of the parties and the settlement agreement approved Unless otherwise noted all dates refer to the year 1969 In drawing this decision the Trial Examiner has kept in mind this language from Philip Carey Manufacturing Company v NL R B, 331 F 2d 720, 735 (C A 6), "Nor may we forget that the interests to be protected are primarily those of employees " FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR' 149 I. THE BUSINESS OF THE RESPONDENT DOCTORS HOSPITAL Respondent Doc ors Hospital is a copartnership composed of Anton Notey and approximately 70 other individuals, doing business under the trade name and style of Doctors Hospital, Freeport, New York. At all times material herein, Respondent Doctors Hospital has maintained its principal office and place of business at 320 Merrick Road in the town of Freeport, county of Nassau, and State of New York, where it is, and has been at all times material herein, continuously engaged in providing medical services and related services. During the past year, which period is representative of its annual operations generally, Respond- ent Doctors Hospital, in the course and conduct of its business, derived in excess of $1 million gross revenue therefrom and purchased and caused to be transported and delivered to its hospital pharmaceutical products, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its hospital in interstate commerce directly from States of the United States other than the State in which it is located. Respondent Doctors Hospital is, 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. II. THE LABOR ORGANIZATIONS INVOLVED Licensed Practical Nurses' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union and Licensed Practical Nurses of New York, Inc., are and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES First At all times material herein Anton Notey was a partner and the executive director of Doctors Hospital as well as partner and director of Central General Hospital, Smithtown General Hospital, and the South Shore Nursing Home; James J. Ryan, Lohta L. Minnick, and Virginia Hatfield were respectively the administrator, director of nursing services, and assistant director of nurses of Doctors Hospital. Alex DeLaurentis was the president and chief negotiator of Local 1115 A current collective-bargaining agreement, effective Octo- ber 11, 1968, was and is in effect between Doctors Hospital and Local 1115 covering blue collar hospital workers. Licensed practical nurses (sometimes referred to herein as L P.N.'s) were not covered by the agreement.` Similar contracts with Local 1115 cover blue collar workers at Central General Hospital, Smithtown General Hospital, and South Shore Nursing Home. In addition to blue collar ' The unit described in the contract was "all of its employees excluding registered nurses, licensed practical nurses, and supervisors " 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workers, the South Shore Nursing Home contract includes licensed practical nurses and registered nurses. Second: On the morning of April 21, at or about 10:30 or 11, DeLaurentis, accompanied by several L P.N.'s, includ- ing Marguerite Grogan, appeared at Dr. Notey's office in Doctors Hospital and presented him with 24 Local 1115 designation cards purportedly signed by L.P.N.'s in the employment of Doctors Hospital. Claiming a majority in a unit of 41 L.P.N 's,5 DeLaurentis demanded that Dr. Notey sign the recognition agreement set forth in the margin which was later executed on April 26.6 Among other things, the agreement required that the Employer concede and agree that Local 1115 had been "designated Forty-one was DeLaurentis ' representation ` The agreement read as follows AGREEMENT entered into this day of 19. effective as of 19, by and between the Licensed Practical Nurses ' Guild of Local 1115 Nursing Home-Hospital-Senior Citizens Hotel Union, an unincorpo- rated independent association , hereinafter referred to as the "UNION" having its principal office in the state of New York, and DOCTORS HOSPITAL, FREEPORT, NY, hereinafter referred to as the "EMPLOYER" located at 320 W Merrick Rd, FREEPORT in the State of New YORK W ITN ESS ETH WHEREAS, the Union has requested the Employer to bargain with it for the purpose of consummating a Collective Bargaining Agreement covering employees of the Employer who come within the jurisdiction of the Union, and WHEREAS, the Employer has requested proof of such representa- tion, and the Union has presented evidence thereof NOW, THEREFORE, it is agreed as follows 1 The Employer and the Union mutually agree that the following classifications of employees of the employer constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours and other conditions of employment Included LICENSED PRACTICAL NURSES Excluded RN's 2 The Employer hereby concedes and agrees that the Union has been designated or selected for the purpose of collective bargaining by the majority of the employees in the unit appropriate for such purposes as set forth in Paragraph "I" hereof, and by reason thereof is the exclusive representative of all of the employees within the said appropriate unit 3 The Employer hereby further agrees that it recognizes and will bargain collectively with the Union as the exclusive representative for the purpose of collective bargaining of all of its employees within the said appropriate unit 4 The Employer agrees that it will negotiate, conclude and execute a Collective Bargaining Agreement with the Union pursuant to the negotiations hereunder on or before the day of 19. 5 In the event any of the issues arising out of said collective bargaining negotiations are in dispute, said issues shall be submitted to arbitration before Mr Morton Singer, of 13 Third Street, Rye, New York who shall be hereinafter known as the arbitrator, and whose decision shall be final and binding on both the Union and the Employer The parties shall thereupon promptly embody terms so awarded as well as the terms agreed upon in a written agreement in the case of Mr Singer's death or resignation , George Moskowitz, 347 Madison Ave, New York City shall be the arbitrator # Licensed Practical Nursts ' Guild if LOCAL 1115 Nursing Home-Hospital -Senior Citizens Hotel Union Name Authorized Signature Authorized Signature or selected for the purpose of collective bargaining by the majonty of the employees in the unit appropriate for such purposes." Dr Notey, taken by surprise, inquired of Hatfield, whom he summoned, whether she had known that such organization activity was occurring; she denied any knowledge.' The cards were then turned over to Hatfield for verification. Hatfield, together with Local 1115 represent- atives, compared the signers' signatures with signatures on their withholding forms obtained from the Employer's files. Since the signatures of some of the card signers were not available, these signers were contacted by telephone and asked if their signatures appeared on the card. All answered in the affirmative Hatfield reported to Dr. Notey that all the signers' signatures were verified. Later in the afternoon or the next morning, after the Local 1115 repre- sentatives had departed, Dr. Notey asked Hatfield to count the number of L.P.N.'s on the staff. She reported at least 43. When Hatfield reported to Dr. Notey that the signers' signatures were verified DeLaurentis again demanded that Dr Notey sign the recognition agreement.' Dr. Notey ref- used and according to Grogan (whom the Trial Examiner credits on this subject), Dr. Notey said that "he would not do it unless and until he had spoken to his attorney."' The confrontation deteriorated into "a lot of shouting" and "a great deal of dissension " At the time Dr. Notey showed no immediate inclination to voluntarily recognize Local 1115. He insisted on putting off recognition until "tomorrow." Indeed the credible record reveals no meeting of the minds on the subject of recognition on April 21. iS In the meantime L.P.N., Virginia Alex, am employee who had not signed a Local 1115 designation card, learned of Local 1115's organizational efforts. She conferred with another L.P.N, Elizabeth Hultz, after which, at or about 11 a.m , she telephoned the Association and talked with Pearl Rasin, the Association's field representative and eco- nomic security chairman for the State of New York. Alex Later Dr Notey learned that there had been "many meetings" and that "Mrs Bishop, the supervisor, helped them to get the meetings going " DeLaurentis testified that he said to Dr Notey, "Here, sign the recognition stipulation and we will start negotiating " The Trial Examiner considers both Dr Notey and DeLaurentis, whose testimony was of a capricious nature, to be unreliable witnesses 10 If the evidence is construed most favorably in support of a finding that Local 1115 was recognized as the exlcusive bargaining representative of the L P N's by Dr Notey on April 21, it, nevertheless, does not appear that the Employer, within the meaning of the Act, had actually recognized Local 1115 as the exclusive bargaining representative of the L P N 's on that date The uncertainty of such a finding is implicit in the following testimony Ryan testified that sometime before the signatures were checked he suggested an election to which DeLaurentis responded "[w]hy should he go to an election and take a chance on losing it when he already had 51%" In response to DeLaurentis' claim of majority, according to Ryan, Dr Notey said, "Well, let me look into it and we will meet tomorrow" and, when DeLaurentis asked Dr Notey to sign the recognition agreement, Dr Notey responded that "he wanted to be sure that the majority of LPN's wanted the union and at that time he wouldn't sign it until he spoke to his lawyer " Hatfield testified that after she returned from checking the cards Dr Notey said, "Don't push me I'll sign it I'll sign it " According to DeLaurentis, Dr Notey said, "I'll see you tomorrow, I'll sign tomorrow You got it " DOCTORS HOSPITAL informed Rasin that Local 1115 was "wanting to represent the licensed practical nurses at Doctors Hospital" and inquired whether there was anything the Association could do so that the L.P.N.'s could be represented by the Associa- tion. Rasin explained that the Association must have desig- nations from a majority of the L.P N 's before the Associa- tion could represent them Rasin commented that, she believed that the Association had members at Doctors Hospital" and suggested that Alex contact them for help. Rasin sent Alex some union information and material. Third: On April 22, DeLaurentis again appeared at Doc- tors Hospital and informed Dr. Notey that he "wanted recognition." Dr. Notey answered, "I don't think I'm going to sign it now. . . . I want to meet in Julius' office."12 Arrangements were made to meet in Lawyer Gerzof's office the following day. Notey mentioned that his present informa- tion was that there were 47 employees in the unit" and that a majority of 1 was not enough. Notey insisted upon an election. He observed that "he was not going to sign anything like he did other times without his lawyer looking at it first." On the same day L.P.N. Hultz telephoned Rasin about Association representation for L.P.N.'s. During the evening Alex informed Supervisor Pagones that she was annoyed with what was going on and observed that she had a free choice as to what organization she desired to join. She said she did not want to be pushed into something. She asked permission to telephone Mr. Ryan and Dr. Notey; she was unable to reach either one. Fourth: On the morning of April 23, six L.P.N.'s, includ- ing Alex and Hultz, formed a committee and sought audi- ence with Dr. Notey. At first Dr. Notey refused an audience but after having been reminded that he had told employees in a general meeting that if they had any problems they could come to him, he agreed. The meeting occurred shortly after noon in Ryan's office. L.P N.'s Alex, Hultz, DeSantis, Short, Walters, and Butler and Supervisors Ryan and Hat- field were present. Dr. Notey was informed that the L.P.N.'s DeLaurentis further testified that Dr Notey said, after the cards were checked, "No, I am not going to sign it I know what is in there I signed once before If we don't get together it goes to arbitration I don't want to be put in that position I don't want to sign it now You have got it You are in I will see you tomorrow You take my word, my word is good I have dealt with you before I recognize you, but I am not going to sign today I will see you tomorrow You got it, you are in What are you worrying about')" Dr Notey testified that he told DeLaurentis, "You know, Al, we never had much trouble I will recognize them tomorrow I am not in a hurry, this is not a volcanic eruption that has to be done today and I might want to talk to my lawyer " Further testifying, Dr Notey was asked, "What did you say to him upon which you base your conclusion that you recognized the union)" Dr Notey answered, "I told them the first time 'What's your hurry, what's your rush? We have had this situation many times and I didn't always sign the first hour, the first day Let me just sleep on it and let me see tomorrow You know we won't have any trouble' My conclusion was based on the signatures and on the majority I said, 'I will recognize you, it doesn't have to be today, tomorrow " " L P N Mary Pugh had been a dues paying Association member for a number of years " The office of Julius Gerzof, Notey's lawyer " When DeLaurentis made his first demand for recognition he claimed that there were 41 L P N 's in the unit 151 had contacted the Association and that a majority of the girls wanted the Association and did not want Local 1115 to represent them . Dr. Notey was told that if the L.P.N's were forced into Local 1115 the the Association partisans would resign and that a "lot" of the L.P.N.'s had signed Local 1115 designation cards because they were told that the administration was behind it. Notey was asked whether the L.P.N.'s could hold an open meeting at which all the L.P.N.'s might attend so that they could find out which Union they wanted Dr. Notey agreed . The meeting was scheduled for Monday , Arpil 28, in the hospital's board room . 14 Notey was asked not to sign a contract with Local 1115. Dr. Notey told the committee that "he had no preference whether it was Local 1115 or the Associa- tion. He said it was the employees' decision to make.15 Later in the day DeLaurentis, Dr. Notey, and Gerzof met in Gerzof s office, DeLaurentis tried again to obtain recognition for Local 1115 , recognition was refused and an election demanded . To this demand DeLaurentis respond- ed "Never." DeLaurentis left Gerzof s office and proceeded to Doctors Hospital where he called a meeting of the blue collar workers covered by the current agreement . The L.P.N.'s did not attend the meeting . DeLaurentis reported the status of the L.P.N.'s demand for recognition to the blue collar workers and informed them that "if they wanted to back up the workers" this could be accomplished "by sitting in if necessary." Fifth: On April 24, the blue collar workers commenced a "sit-in" in the conference room of the hospital . L.P.N.'s did not join the "sit-in." Local 1115 also engaged in a "sit-in" at South Shore Nursing Home, Central General Hospital, and Smithtown General Hospital. L.P.N DeSantis contacted Rasin by telephone and inquired whether there was "any possibility of [her] coming down the next day." DeSantis explained "that the licensed practical nurses at Doctors Hospital [were] doing above their duties of the L.P.N.'s because of the work stoppage and the other workers who were stopping were not doing their work and they had to do their work plus the other." Sixth: On April 25, DeSantis again telephoned Rasin and urged her to come to Doctors Hospital immediately Rasin agreed to visit the hospital around 11:30 to 12 o'clock. " A notice was posted in the hospital as follows. Attention All LPN's-All shifts Let's be represented by our own organization-"The L P N Assoc " Be Sure to make this important meeting Your Professionalism is at stake Monday April 28th, 1969 loam and7pm " Ryan testified When the meeting started the girls said they wanted to speak to Dr Notey Their first question was,"How could you do this to us9" He said, "Well, they claim they have 51%" So, the girls said, "This isn't true " He said, "What can we dog" He said, "I am sorry, you will have to fight with your association I can not enter into it I have nothing to do with it It is out of my hands " 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to arrival at Doctors Hospital, Rasin and Associa- tion Attorney Robert Silagi contacted Dr Notey at the Central Island Nursing Home. At the time Dr Notey and his lawyer, Gerzof, were engaged in the preparation of injunction proceedings involving the "sit-in." Rasm informed Dr. Notey that she had been receiving calls from L.P.N.'s at Doctors Hospital at least two or three times a day concerning the Union situation and that she wanted permission around lunchtime to visit Doctors Hospital in order to learn what the L.P.N.'s problems really were. Notey replied that "he had to do something to stop the work stoppage because the patients care was being concerned and that he was preparing an injunction with his attorney at this time " Upon inquiry Dr. Notey told Rasin a total of 47 L.P.N.'s were employed by Doctors Hospital. Dr. Notey told Rasin that she could talk to the employees 16 He further informed her that DeLaurentis wanted to repre- sent the L P.N.'s but he had refused him recognition. Among other things Dr. Notey, who was in the process of initiating injunctive proceedings against Local 1115's "sit-in," said, "I want to throw those bums out." Dr. Notey admitted that he knew Rasin and Silagi were going to Doctors Hospital," and that he did not deny permission. According to Dr. Notey, Rasin informed him that the Association had members in the hospital among the L PPN's and that she wanted to secure designations from them. She added that the Association wanted a contract Silagi and Rasin left Central Island Nursing Home and proceeded to Doctors Hospital where they arrived about 12:10 p.m. Upon arrival they were met by Alex and Hultz in the lobby and shortly after were joined by DeSantis. At first this group planned to approach the L.P.N.'s and solicit their signatures to cards, but this proved to be difficult because they did not recognize many of the L.P.N.'s. Considering solicitation in this manner to be an impossibility, Alex asked the switchboard operator to announce that all L.P.N.'s should meet in room 102-A, a vacant, patient's room. The announcement was given over the public address system even though Alex did not obtain permission from the hospital authorities to make the announcement. In response to the announcement the L.P.N.'s commenced arriving at the room. Shortly thereafter Ryan appeared and informed the participants that they could not hold a meeting, "that the Union had complained." Silagi respond- ed that Dr. Notey had given permission and they would not be in there long Ryan departed. The meeting lasted about one-half hour; a substantial number of cards were signed 1e Between 1:30 and 2 p in. Rasin and Silagi appeared at Gerzof's office with the Association designation cards " Rasin testified "From the course of the conversation it seems like Dr Notey wouldn't give me a definite no He did tell me that I could talk to them So the rest I did on my own " " Dr Notey testified that he gave Rasm and Sdagi access to Doctors Hopitals because he had learned that Local 1115 had used the hospital for organizational activities and he desired to give the Association the same right There is no credible proof that Dr Notey knew that the Association intended to solicit card signers from other than employees who were already Association members or hold a meeting for such purpose at the hospital premises claiming that the Association represented a majority of the employees. They asked for recognition; the Association was not recognized. The Association also addressed a tele- gram to Dr. Notey which set forth that the Association demanded "recognition as collect[ive] bargaining agent on behalf of all licensed practical nurses." The telegram was stamped "Apr 25 PM 12 53." Seventh: At approximately 2 p.m. on April 26, DeLauren- tis was served with four Orders to Show Cause directing Local 1115 and its officers to cease and desist from any interference with the operation of the hospitals, including no "sit-down," no work stoppage, and no strike." DeLauren- tis' response to the Order to Cause was "Mr. Gerzof, tell these papers to do this work because the employees will never go back to work until you first sign a contract for the LPN's." On April 26, a recognition agreement retroactive to April 21 was executed with Local 1115. During discussions in regard thereto, DeLaurentis was advised that the Association had made claims that it represented a majority of the employees. Eighth: On April 27 Local 1115 continued to ignore the court's injunction and persisted in its "sit-in." Around 5 p.m., the Employer capitulated and signed the agreement proffered by DeLaurentis DeLaurentis advised the employ- ees that the contract had been achieved and ordered the employees who were "sitting in" to return to work The Employer's capitulation stemmed from emergency conditions which were existing in the hospitals and nursing home as a result of DeLaurentis' insistence on the "sit- ins" even in the face of the injunction. A continuation of the "sit-ins" would have imperiled the lives of patients for whom accommodations were not available elsewhere. Dr. Notey was confronted with either capitulation or a continuation of certain risk to the lives of patients in the three hospitals and the nursing home in which he held interest. The agreement provided for recognition of Local 1115 for a unit of "licensed practical nurses excluding supervisory employees." The agreement was made retroactive to April 21. The agreement included a union-security clause as fol- lows: It shall be a condition of employment that all employ- ees of the Employer covered by this agreement who are members of the Union in good standing on the execution or effective date of this agreement, whichever is later, shall remain members in good standing and those who are not members on the execution or effective date of this agreement, whichever is later, shall on the thirtieth (30) day following the execution of effective date of this agreement, whichever is later, become and remain members in good standing in the Union. It shall also be a condition of employment that all " Among those signing Association cards at this meeting were Alex, Walters, Butler, Hultz, DeSantis, and Short, all of whom were the original Association supporters L P N Mary Pugh, a dues paying member of the Association for a number of years, also signed a card at this meeting . " DeLaurentis testified, "I told the employer that the workers were taking action until he negotiated a contract with us " DOCTORS HOSPITAL employees covered by this agreement and hired on or after its execution or effective date, whichever is later, shall on the thirtieth (30) day following the beginning of such employment become and remain members in good standing in the Union. and a checkoff clause. The Employer agrees to deduct no later than the 10th day of each month from the wages of employees their membership dues, assessments and initiation fees and agrees at the same time to remit immediately to the Union all such deductions, provided that the Employer has received from each employee on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one (1) year, or beyond the termination date of this agreement, whichever occurs sooner The Employer shall furnish the Union monthly with a record for those for whom deductions have been made and the amounts thereof. All funds so deducted by the Employer shall be held as trust funds and shall not be co-mingled with other funds of the Employer. Dues were checked off pursuant to the clause. The agreement further provided that the employer "shall pay to Local 1115 Welfare Trust Fund . . . the sum of Twenty-Four dollars ($24) per month for each employee covered by this Agreement." Ninth: On April 28 the Association filed a representation petition in Case 29-RC-1235 and the charge in Case 29- CA-1647. Tenth: The threshold question is whether, upon the pres- entation of signed authorization cards by Local 1115 on April 21, 1969, and the purported verification thereof by signature comparison as to some and telephone acknowledg- ment as to others, the Employer became obligated to recog- nize the bargain with Local 1115, in conformity with the requirements of Section 8(a)(5) of the Act. Section 8(a) requires "It shall be an unfair labor practice for an employer .. (5) to refuse to bargain collectively with the representa- tives of his employees , subject to the provisions of section 9(a) "2° The Board's current practice , which in effect2i was approved in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, provides that "[w]hen confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees , an employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline a union's request and insist on an election , either by requesting the union to file an election petition or by filing such an election petition himself under § 9(c)(1)(B)," except that, if the employer "commits independent and substantial unfair labor practices disruptive of election condi- tions, the Board may withhold the election . and issue " ° Sec 9(a) of the Act provides "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes , shall be the exclusive representa- tives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment " " See NLRB v American Cable Systems, Inc, 414 F 2d 661, 668 (CA 5) 153 instead a bargaining order as a remedy for the various violations." There is no credible evidence in the instant case which supports a finding that the Employer had knowledge inde- pendently of the cards presented by the Union that the Union represented a majority of its L P.N.'s", or that the Employer prior to its knowledge of the L P.N.'s interests in the Association committed independent and substantial unfair labor practices disruptive of election conditions. Nei- ther does the credible evidence establish that the Employer actually voluntarily or otherwise recognized Local 1115 as the exclusive representative of the L.P.N.'s until it execut- ed the written recognition agreement on April 26, which was compelled by the "sit in." Indeed, if the claim for oral recognition is viewed most favorably for Local 1115, on August 21, recognition was put off until "tomorrow." Nevertheless, even though the Employer had confirmed and acknowledged the Union's card majority on August 21 and had accorded voluntary recognition to Local 1115, as long as bargaining had not actually commenced and the Employer possessed no knowledge of Local 1115's alleged majority independently of the card showing, or the Employer had committed no independent and substantial unfair labor practices disruptive of election conditions, it could have insisted on an election without committing an unfair labor practice . See Gissel case, supra. Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc., 173 NLRB No. 30. In the latter case the proof was that not only did the respondent company know "that the Union represented an uncoerced majority of its employees in a unit appropriate for the purposes of collective bargaining by reason of [the employer's] examination of the union authorization cards" but the employer "observed and knew that a majority of its employees in such unit had ceased work and were on a peaceful picket line patrolling the Company's premises." The Board reversing the Trial Exam- iner held- The Board has made clear that to establish that an employer's failure or refusal to grant recognition to a union on the basis of a card showing violates Section 8(a)(5), the General Counsel has the burden of proving not only that a majority of employees in the appropriate unit designated the Union as their bargaining representative , but also that the Employer in bad faith declined to recognize and bargain with the Union . This is usually based on evidence indicating that the Employer has completely rejected the collec- tive-bargaining principle or seeks to gain time within which to unlawfully undermine the Union and dissipate its majority. In the present case, however, there is no showing whatsoever that Respondent had rejected the collective- bargaining principle or engaged in any interference, restraint, or coercion of employees to undermine the Union. Nor does the record show that Respondent has engaged in any other conduct which would prevent the holding of a fair election We conclude, therefore, " In this respect it is significant that none of the L P N 's joined the "sit-in " at Doctors Hospital 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the record does not preponderantly establish Respondent's bad faith in refusing to recognize the Union, and we shall dismiss the complaint. In the instant case, at the time the Employer first insisted upon an election, there was no showing that the Employer had rejected the collective-bargaining principle or had engaged in any interference, restraint, or coercion of employ- ees to undermine the Union. Nor does the credible record show that the Employer had at that time engaged in any conduct which would have prevented the holding of a fair election In that it does not appear that the Employer acted in bad faith when it insisted upon an election or resorted to unfair labor practices before it knew of its employees' interest in a rival union, its insistence ' upon an election may not be deemed unlawful. Thus a real question of representation was raised, for when faced with proof of a card majority an employer is within his rights to insist upon an election, and this is true even though he acknowledges the seeming validity of union authorization cards by a signature check. As long as the insisting employer stands free of commission of independent and substantial unfair labor practices, union authorization cards in them- selves may not be used to establish a union's majority status. Cards for such purpose become material only when an employer's insistence upon an election is accompanied by the employer's misconduct of such a character as to render a fair and uncoerced election unlikely. Gissel case, supra, Arthur F. Derse, etc. supra. Thus the cards presented to the Employer on April 21 could not under the circum- stances of this case stand as proof of the majority status of the Union. The Employer was not obligated to recognize and bargain with Local 1115 on April 21 (cf. Sweatermasters Co., Inc., 176 NLRB No. 38) and the Employer could lawfully insist on an election. A real question of representation may be resolved either by an election or by an employer's "properly" recognizing a union. See Keller Plastics Eastern, Inc., 157 NLRB 583. Recognition of Local 1115 occurred in this case when the Employer under stress abandoned its insistence upon an election and signed a recognition agreement on April 26 and the next day signed a labor agreement. Was the recognition under these circumstances "proper"? As long as an employer lawfully insists upon an election a real question of representation is pending unresolved. During such a period a rival union's demand for exclusive bargaining rights served on the employer is relevant and the real question of representation already pending is broad- ened to include the rival union 's claim. Once this claim is advanced the employer is not legally free to recognize and bargain with either union as the exclusive bargaining representative of its employees until the real question of representation had been resolved. Accordingly, when the Association asserted its claim as exclusive bargaining repre- sentative of the L.P.N's, untainted by any misconduct of the Employer," the question of representation could 11 The Respondent Local 1115 insists that the Midwest Piping doctrine is not applicable to the given situation, i e , "We submit that there is no 'real question' [of representation] because of the employer [sic] and Assn 's [sic] conduct." Local 1115 argues "All cards were 'tainted' and the Assn cannot enjoy the fruits of the poisoned tree " But, assuming not have been resolved either by voluntary recognition of Local 1115 or the Association for the "cardinal element of the Midwest Piping, 14 doctrine is that an employer cannot arrogate unto himself authority to determine which of two or more contending unions is entitled to recognition as exclusive bargaining agent." Iowa Beef Packers, Inc., 144 NLRB 615, 619.25 Hence the recognition of Local 1115 during a period when a real question of representation was pending was unlawful and the contract executed pursuant to such unlaw- ful recognition was and is null and void. Accordingly the Trial Examiner finds that the Respondent Employer, in recognizing the Respondent Local 1115 as the exclusive representative of its L.P N.'s at a time when Local 1115 had not been lawfully designated as their exclu- sive representative for the purposes of collective bargaining and thereafter entering into a collective-bargaining agree- ment with Local 1115 covering such employees at a time when a real -question concerning their representation for the purposes of collective bargaining existed, violated Section 8(a)(2) and (1) of the Act. The Trial Examiner further finds that Respondent Local 1115 violated Section 8(b)(1)(A) of the Act by accepting recognition as the exclusive representative of L.P.N.'s and by thereafter dealing and contracting with the Employer in the circumstances above described, and the contract which was obtained at a time when Local 1115 had not been lawfully designated as the exclusive representative of the Employer's employees must fail in its entirety. The Trial Examiner further finds that the limitations on union activity, as well as the right to refrain from union activity, imposed by the maintenance of membership provisions of the contract and the support to Local 1115 provided thereby are at odds with the requirements of Section 8(a)(1), (2) and (3) of the Act, and that by reason of the execution of and the maintenance of such provision the Respondent Employer violated Section 8(a)(1), (2), and (3) of the Act. Fiore Brothers Oil Co., Inc., 137 NLRB 191, 208, enfd. 317 F.2d 710 (C.A. 2); Mr. Wicke Ltd. arguendo that the cards were "tainted" by the meeting of April 25 in room 102-A, such "taint" would not have vitiated the cards of original Association supporters Alex, Hultz, Walters, DeSantis, Butler, and Short or Pugh who was an Association member or Key, Maturano, Tudor, Lejuene and Amarante whose cards were not signed in room 102- A It may not be presumed that these employees had not or would not have chosen the Association as their representative, even if the meeting in room 102-A had not been held Moreover, the credible proof does not establish that the Employer knew of, encouraged, or gave its approval to the meeting of L P N 's for the purpose of Association card solicitation In fact Ryan protested Neither the fact that the Associa- tion lawyer stretched the truth nor the fact that certain nonsupervisory employees assumed unauthroized solicitation privileges hangs the Employ- er with unfair labor practices Furthermore no Employer's representative was present at the meeting Under the circumstances of this case the Association cards do not reflect the participation of the Employer in their solicitation either directly or indirectly. The Association's claim was a legitimate rival union claim Sweatermas ters Co, Inc, supra " Midwest Piping & Supply Co, Inc., 63 NLRB 1060 " "It is of no consequence that no petition for representation had been filed by one of the rival unions for such a petition is not an indispensable prerequisite to the existence of a question concerning repre- sentation " Burke Oldsmobile, Inc, 128 NLRB 79, 86 DOCTORS HOSPITAL Co., 172 NLRB No 181; Carlson Furniture Industries, Inc., 153 NLRB 162. The Trial Examiner further finds that, by entering into the maintenance of membership provision in the contract and accepting dues checked off to the Union , Local 1115 violated Sections 8(b)(1)(A) and (2) of the Act. The Trial Examiner further finds that the Respondent Employer in honoring the dues checkoff authorizations obtained by the Respondent Employer's unlawful assistance and its deduction of dues pursuant to a contract executed during a time when a real question of representation was pending constituted a contribution of support to Local 1115 and thereby the Respondent Employer violated Section 8(a)(2) of the Act. CONCLUSIONS OF LAW 1 The Respondent Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Local 1115 and the Association are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing Local 1115 at a time when the Union was not the lawful exclusive representative of the Respond- ent Employer's licensed practical nurses and by contracting with it at a time when a real question concerning representa- tion of such employees existed the Respondent Employer thereby rendered and is rendering unlawful assistance and support to a labor organization and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act 4. By including in said agreement a provision requiring membership in Local 1115 and by deducting sums of money from the wages of its licensed practical nurses for union dues to Local 1115 pursuant to the Union's security provi- sion of the agreement Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2) and (3) of the Act. 5. By recognizing Local 1115 at a time when the latter was not the lawful exclusive representative of its licensed practical nurses and by contracting with it at a time when a real question concerning representation of such employees existed, the Respondent Employer has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (2) of the Act. 6. By accepting recognition as the exclusive representative of the Employer's licensed practical nurses when it was not the lawful exclusive representative of such employees and by contracting with the Employer at a time when a real question concerning representation of such employees existed, and by accepting dues deductions for employees covered by the agreement from the Employer, the Respond- ent, Local 1115 , restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 155 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED REMEDY Since the Respondents have engaged in unfair labor prac- tices and in order to protect the interests of the Employer's employees as is compelled by the Act, the Trial Examiner recommends that the Respondents cease and desist from a continuation of their misconduct herein found and take certain affirmative action designed to effectuate the policies of the Act and restore as nearly as possible the conditions which existed prior to commission of the unfair labor practices. In order to dissipate the effect of the Respondent Employer's unfair labor practices the Trial Examiner recom- mends that the Respondent Employer be ordered to with- draw and withhold recognition from the Respondent Local 1115 as the exclusive representative for the unit described under the contract and to cease giving effect to the agreement or to any renewal or extension thereof until such time as Respondent Local 1115 shall have been certified by the Board as the exclusive representative of the employees in question. In order to dissipate the effect of Respondent Local 1115's unfair labor practices it is recommended that said Union cease maintaining or giving effect to its current recognition and collective-bargaining agreement with the Respondent Employer be excused from reimbursing employ- until such time as the Respondent Union shall have been certified by the Board as the exclusive representative of the employees in question. Although it has been found that the dues deductions were in violation of the Act, in view of the compulsive nature of Local 1115's "sit-ins"26 and the extreme peril created thereby, the Trial Examiner recommends that the Respondent Employer be excused from reimbursing employ- ees for any dues deducted pursuant to the terms of the contract prior to the issuance of this Decision. Cf. Intalco Aluminum Corporation v. N.L.R.B. 417 F. 2d 36 (C.A. 9). The Employer maintains that "welfare payments received by the Union and its Welfare Fund, from April 29th, should be directed returned to the hospital and that all Union dues collected by it of all of its members be returned to each of them." As for the dues, since Local 1115 did obtain certain benefits for employees by its representation of them, the Trial Examiner recommends likewise that it be excused from reimbursing employees for any dues deducted pursuant to the terms of the contract prior to the issuance of this Decision. As to the Employer's contributions on behalf of the employees to the Local 1115 Welfare Trust Fund, pursuant to the terms of the contract, a different problem is presented. Under the terms of the contract there is no provision for an employee's continued participation in the Fund after the expiration of the contract. Thus the employee, upon 1° Cf NL R B. v Fansteel Metallurgical Corporation, 306 U S 240. In this regard while the "sit-ins" were of doubtful legality, the Trial Examiner is of the opinion that such conduct is not of such an insidious character as to bar Local 1115 from further representation of "any and all employees" as requested by the Respondent Employer 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the voiding of the contract, will have no means by which he may enjoy the benefits which the Employer's contribu- tions were intended to provide, unless, of course, employees again select Local 1115 as their bargaining agent and the Fund is again instituted. However, in this there is a danger; that is, employees may be unfairly induced to select Local 1115 as their bargaining agent because of a desire to enjoy the benefits for which their Employer has already provided contribution. To offset such contingency, to restore the status quo ante, and to avoid an unjust enrichment, the Trial Examiner recommends that the Respondent Local 1115 pay over to the employee the amount of money which has been contributed to the Fund for him pursuant to the terms of the contract, less any benefits from the Fund received by him and less the reasonable costs incurred in administering the Fund on his behalf (as distinguished from the administrative costs incurred on behalf of other participants) during the period contributions were made to the fund for him and he was a beneficiary of the Fund Perquisites of this character are a part of the employ- ee's wages. Cf. Inland Steel Company v. N.L.R.B., 170 F 2d 247, 253 (C.A. 7), cert denied 336 U.S. 960; N.L.R.B. v. Stackpole Carbon Company, 128 F. 2d 188, 191 (C.A. 3); W. W. Cross and Company, Inc. v N.L.R.B., 174 F. 2d 875 877-878 (C.A. 1); Lewis v. Benedict Coal Corpora- tion 361 U.S. 459, 469. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case it is recommended that: A. Respondent Anton Notey, Et Ano, a co-partnership, d/b/a Doctors Hospital, Freeport, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to the Respondent Local 1115 or any other labor organization by recognizing such labor organization as the exclusive representative of its licensed practical nurses for the purpose of collective bargaining at a time when there exists a real question concerning representation. (b) Assisting or contributing support to the Respondent Local 1115 or any other labor organization by entering into a collective bargaining contract with such labor organi- zation as the exclusive representative for the purpose of collective bargaining of its licensed practical nurses at a time when there exists a real question concerning representa- tion. `(c) Giving effect to its contract of April 27, 1969, with Respondent Local 1115 or to any renewal or extension, modification or supplement thereto unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees (d) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is found will effectuate the policies of the Act- (a) Withdraw and withhold all recognition from the Respondent Local 1115 as the exclusive representative of its licensed practical nurses for the purpose of collective bargaining unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Post at its hospital located at Freeport, New York, copies of the attached notice marked "Appendix A [Board's Appendix substituted for Trial Examiner's ] "2" Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent Employer's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same conditions as set forth in (b) above, as they are forwarded by the Regional Director, copies of the Respondent Local 1115's notice marked "Appendix B, [Board's Appendix substituted for Trial Examiner's.]" and mail signed copies of the notice marked "Appendix A" to said Regional Director for posting at the place of business of the Local 1115 and places where notices to members and employees and prospective employees are customarily posted Copies of the notice on forms provided by said Regional Director shall be returned forthwith to the Regional Director after they have been signed by an official representative of the Respondent Employer for such posting. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.28 B Respondent Local 1115, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from (a) Accepting exclusive recognition as the representative of licensed practical nurses of the Respondent Employer for the purposes of collective bargaining at a time when there exists a real question concerning representation. (b) Entering into a collective-bargaining agreement with the Respondent Employer as the exclusive representative of its licensed practical nurses for the purpose of collective bargaining at a time when there exists a real question concerning representation. " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " DOCTORS HOSPITAL (c) Giving effect to its contract of April 27, 1969, with the Respondent Employer or to any renewal, extension, modification, or supplement thereto unless and until it has been duly certified by the National Labor Relations Board as the exclusive representative of the employees. (d) In any like or related manner restraining or coercing employees of Respondent Employer in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act- (a) Pay over to each of the Respondent Employer's employees the amount of money which has been contributed to the Local 1115 Welfare Trust Fund by the Respondent Employer in conformity with the conditions set forth in that part of this Decision entitled "Recommended Remedy." (b) Post at its business offices and meeting halls in Freeport, Long Island, or elsewhere copies of the attached notice marked "Appendix B."" Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Union's representative, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days 157 thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material (c) Post at the same place and under the same conditions as set forth in (a) above as soon as they are forwarded by the Regional Director copies of the attached notice marked "Appendix A." (d) Mail to the Regional Director signed copies of the Appendix B for posting by the Respondent Employer as provided above herein. Copies of said notice on forms provided by the Regional Director after being signed by the Respondent Union's representative shall be forthwith returned to the Regional Director for such posting (e) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.30 " See fn 27, supra "See fn 28, supra