Odd Fellows Rebekah Home

ODD FELLOWS REBEKAH HOME Grand Lodge of Ohio, Independent Order of Odd Fellows d/b/a Odd Fellows Rebekah Home and National Union of Hospital & Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO. Case 9-CA- 10079 October 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On October 21, 1976, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. On March 29, 1973, following a secret-ballot election, the Union was certified by the National Labor Relations Board as the exclusive collective- bargaining representative of a unit of Respondent's employees. In April 1973, Respondent and the Union entered into a collective-bargaining agreement effec- tive from April 24, 1973, to April 24, 1976. By letter dated January 12, 1976, the Union advised Respon- dent of its intention "to negotiate a new agreement" and requested a meeting as soon as possible. Respondent acknowledged receipt of this letter and, thereafter, by letter dated February 11, 1976, advised the Union that it had a "sincere and good faith doubt that Local 1199H . . . represents a majority of the employees in the bargaining unit . . . [and that it] cannot and will not negotiate with the representa- tives of Local 1199H . . . unless and until such majority status is established." The complaint alleges that Respondent violated Section 8(a)(5) of the Act by its withdrawal of recognition of and its refusal to bargain with the Union. Respondent's claim of a good-faith doubt as to the Union's continued majority status is based on its contention that prior to Respondent's refusal to I The Administrative Law Judge concluded that on the record before him he could not find that the Union did not in fact enjoy majority status on February iI. 233 NLRB No. 32 bargain more than 50 percent of its employees had expressed their dissatisfaction with the Union to various supervisory and managerial personnel. The Administrative Law Judge agreed with Respondent and dismissed the complaint in its entirety for the reasons stated. We find merit in the General Counsel's exceptions to the Administrative Law Judge's findings and conclusions. Since the Union was the certified bargaining agent and a collective-bargaining agreement was in effect at the time of Respondent's refusal to negotiate a new contract, there was a presumption that the Union's majority status would continue following expiration of the contract and the burden was on Respondent to show that the Union in fact no longer enjoyed majority status' or that Respondent had a reasonable doubt based on objective considerations that the Union retained its majority status as of February 11, 1976.2 In support of its position that its decision to withdraw recognition as of April 24 was based on such reasonable doubt, Respondent relied on (1) employee turnover; (2) less than a majority of employees on checkoff; (3) low level of union activity; (4) union organizational efforts to secure a majority; (5) the overt sentiments of employees; and (6) the report of antiunion sentiments to supervisory and management officials. The Administrative Law Judge correctly rejected Respondent's reliance on such factors as less than a majority of employees on checkoff, low level of union activity during the latter part of the contract term, and increased union activity just prior to the contract renewal date. It is well established that employee membership or financial support of an incumbent union does not reflect or establish the number of employees who desire representation by that union.3 The level of union activity similarly cannot be used as a measure of union support among unit employees. However, we find that the Administrative Law Judge erred in his conclusion that employee turn- over, overt antiunion activity on the part of some employees, and statements of antiunion sentiment made to supervisors support Respondent's claim of a reasonable doubt as to the Union's continued majority support. Employee turnover has been held not to justify a belief that a union has lost its majority status because it is assumed, absent evidence to the contrary, that 2 Dalewood Rehabilitation Hospital, Inc., d/b/a Golden Stare Habilitation Convalescent Center, 224 NLRB 1618(1976). 3 Id. at 1619. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD new hires will support the union in the same ratio as those they have replaced.4 The facts before us show that as of February 11, 1976, the critical date herein, there were 99 employees on the payroll, approxi- mately 73 of whom had been hired since the Union's certification. The record also shows that union membership is voluntary on the part of new employees, requiring only maintenance of member- ship for those who choose to become and remain members after the first 60 days of their employment. Notwithstanding an employee turnover of approxi- mately 75 percent, and notwithstanding the fact that union membership and dues checkoff were purely voluntary for new employees, as of February I 1, 1976, the day Respondent withdrew recognition from the Union, 41 of the 73 employees hired since the election had executed dues-checkoff authorizations. From this, it appears that a clear majority of the postcertification hires not only wanted union repre- sentation but were willing voluntarily to contribute financial support to the Union. Thus, employee turnover not only was not a factor supporting Respondent's claim of loss of majority, but, to the contrary, the conduct of the new employees strongly indicates that the Union continued to enjoy majority status. The overt antiunion activities put forth by Respon- dent as another "objective" consideration consisted of a campaign by two employees against continued representation by the Union. Their campaign basi- cally consisted of circulating antiunion flyers which they had prepared and duplicated. As a result of this campaign and a countercampaign by union support- ers, sentiments of some of the employees became polarized. Respondent's supervisors tended to cate- gorize employee groupings as either being for or against the Union, and, from their observations, they concluded that a substantial number of employees opposed the Union. In the absence of any evidence as to how the supervisors were able to distinguish between prounion and antiunion employees, it is clear that the supervisors' observations of employee groups and their assumptions of antiunion attitudes based on these observations do not provide objective grounds for believing that majority union support had been dissipated. With regard to expressions of antiunion sentiments by employees to supervisory and management officials, it is clear that Respondent's representatives assumed employees had expressed sentiments to the effect that they no longer desired to be represented 4 King Radio Corporation, 208 NLRB 578, 583 (1974). 5 The Administrative Law Judge concluded that of the 99 employees in the unit 56 of them (including the 10 employees listed above) had in one way or another indicated to Respondent's supervisory staff that they did not want the Union to represent them. Although the testimony regarding the by the Union on the basis of statements that had no such import. It is well established that to support a reasonable doubt of union majority support employ- ee expressions of antiunion sentiment must have been made prior to the employer's withdrawal of recognition and must convey an intent not to be represented by the union as distinguished from a desire not to become members for any of a number of reasons or an inability or unwillingness to pay dues. Nevertheless, Respondent attempts to support its refusal to bargain by evidence of employees' statements which either do not manifest a desire not to be represented by the Union, or were made after February 11, 1976. Carl Moot stated that he did not feel he needed to be a member because he already was a member of a UAW union and had a withdrawal card from that union. This statement obviously does not establish that Moot did not want the Union to represent him. Laura Lovelace and Otho Sheets both expressed the view that they did not want to belong to the Union because they were social security annuitants and did not see how the Union could help them. The cost of union membership may be a significant factor to employees of limited earnings, but their expressions do not support the conclusion that they did not desire to be represented by the Union with respect to working conditions in which they were concerned. Joyce Fahl had been the union steward at the Home. Whatever weight might otherwise be given to her expressions of frustration over the Union's inability to achieve certain goals, it is clear that she did not resign her position as union steward until late March 1976, more than a month after Respondent withdrew recognition. Employees Gallagher, Karen Palmer, and Pinker- man did not make known their sentiments until after February 11, 1976, and, accordingly, cannot be relied upon by Respondent to support its doubt as of that date. Employees Crippen, May, and Preston did not testify, but the testimony of Respondent's supervisors fails to support the contention that any expressions by them of their sentiments were made prior to February 11, 1976. Accordingly, Respondent did not have expressions of antiunion sentiment from a sufficient number of employees5 to support a reasonable doubt that a majority of the employees desired to be represented by the Union. Thus, although the evidence shows that there were some employees opposed to contin- substance and timing of expressions of sentiment of several other employees is vague and ambiguous, acceptance of Respondent's factual assertions as to each of the remaining employees establishes that Respondent, at most, had expressions of antiunion sentiment from only 46 employees, less than a majority of the employees in the unit. 144 ODD FELLOWS REBEKAH HOME ued representation by the Union while others had expressed dissatisfaction with the Union, taking the record evidence as a whole, we conclude that Respondent did not have a reasonable doubt, based on objective considerations, that a majority of the unit employees wanted the Union to represent them.6 Accordingly, we find that Respondent's withdrawal of recognition and its refusal to bargain violated Section 8(a)(5) of the Act, and we will order Respondent to recognize and, upon request, bargain with the Union as exclusive representative of the employees in the appropriate unit. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Grand Lodge of Ohio, Independent Order of Odd Fellows d/b/a Odd Fellows Rebekah Home, Spring- field, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with National Union of Hospital & Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the following appropriate bargaining unit: All employees of the Employer employed at the Odd Fellows Rebekah Home facility in Spring- field, Ohio, but excluding all registered nurses, all licensed practical nurses, individuals who perform services on a contract basis, guards, professional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Recognize and, upon request, bargain collec- tively with National Union of Hospital & Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit, described above, with regard to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its Springfield, Ohio, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region '9, after being duly signed by Respondent's authorized representative, shall be posted by Respondent 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. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 6 Member Murphy agrees with the conclusion reached herein but does not rely on the absence of antiunion expressions by a majority of the employees, as her colleagues do. This has not been required in any case in the past. No rational basis appears for concluding that such expressions by 46 of the 99 in this unit warrants Respondent's asserted good-faith doubt of continuing majority status; for if46 were sufficient, what of 45 or 44? This- plus the fact that the Administrative Law Judge's credibility resolutions seem extremely doubtful-leads her to concur in the result on the facts herein rather than on the number of employees involved. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with National Union of Hospital & Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive repre- sentative of employees in the following appropri- ate bargaining unit: All of our employees employed at the Odd Fellows Rebekah Home facility in Spring- field, Ohio, but excluding all registered nurses, all licensed practical nurses, individ- uals who perform services on a contract basis, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL recognize and, upon request, bargain collectively with the aforesaid Union as the exclusive representative of all employees in the appropriate unit, described above, with regard to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if an understanding is reached, embody such understanding in a signed agreement. GRAND LODGE OF OHIO, INDEPENDENT ORDER OF ODD FELLOWS D/B/A ODD FELLOWS REBEKAH HOME DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me in Springfield, Ohio, on June 30 and July 1, 6, 7, and 8, 1976, upon a complaint issued by the Regional Director for Region 9 of the National Labor Relations Board on April 12, 1976, pursuant to a charge filed by National Union of Hospital & Nursing Home Employees, Local 1199H, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, herein called the Union, on February 23, 1976, and an answer timely filed by Grand Lodge of Ohio, Independent Order of Odd Fellows d/b/a Odd Fellows Rebekah Home, herein variously called the Respondent, the Employer, and the Home. The complaint alleges a violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, by the Respondent by refusing to bargain with the Union. The Respondent's answer denies the commis- sion of any unfair labor practices, and affirmatively contends that the Respondent has had, at all times material, a good-faith doubt that the Union represents an uncoerced majority of its employees in the appropriate bargaining unit alleged by the complaint and admitted by the Respondent. Upon the entire record,' including my observation of the demeanor and testimony of the witnesses and the logical consistency and inherent probability thereof, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. JURISDICTION The complaint alleges, the Respondent admits, and I find that the Respondent is an Ohio not-for-profit corporation engaged in the operation of a rest home and nursing center in Springfield, Ohio; that during the past year, a represen- tative period, the Respondent received gross revenues in excess of $100,000 and purchased goods and supplies value in excess of $3,000 from suppliers located in Ohio who in turn received said goods and supplies directly from points located outside the State of Ohio; and that the Respondent is now and has been, at all times material, an employer engaged in commerce within the meaning of the Act. 1 After the close of the hearing, the Respondent filed a motion dated August 23, 1976, to correct the transcript of the record. The General Counsel having stated he has no objection thereto, and as the corrections relate to minor errors and accord with my own recollection, the motion to correct is hereby granted. The transcript contains numerous other omissions and grammatical and spelling errors which I do not deem sufficiently material to warrant correction, and which should appear obvious to any reviewing authority. 11. LABOR ORGANIZATION The Union is now, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. SUPERVISORS On the basis of the pleadings, stipulations by the parties, posttrial briefs, and the record as a whole, I find that the following named individuals occupied the positions set forth after their names and were supervisors within the meaning of Section 2(11) of the Act at all times material to the issues at bar: 2 Mae R. Stamps George A. Cummins Donella Ely Dortha Marsh James Morris Elsie Parker Armor Leach Jean Owens Administrator Assistant Administrator Director of Food Service Director of Nursing Supervisor of Maintenance Supervisor of Housekeeping Laundry Supervisor Night Charge Nurse IV. THE UNFAIR LABOR PRACTICES A. Background The background facts are not in dispute and this recitation thereof is derived from the pleadings and stipulations of the parties. The Union was certified by the National Labor Relations Board, hereinafter referred to as the Board, on March 29, 1973, as the exclusive collective- bargaining representative of the Respondent's employees in an appropriate bargaining unit consisting of "All employees of the [Respondent] employed at the Odd Fellows Rebekah Home facility in Springfield, Ohio, but excluding all registered nurses, all licensed practical nurses, individuals who perform services on a contract basis, guards, professional employees and supervisors as defined in the Act," subsequent to a Board-conducted election wherein 57 employees voted for the Union, 16 voted against the Union, 2 were challenged, and there was I void ballot. Following certification, the Respondent and the Union negotiated and executed a collective-bargaining agreement covering the employees in the aforesaid unit, effective from 7 a.m., April 24, 1973, until 7 a.m., April 24, 1976. By letter of January 12, 1976,3 the Union requested the Respondent to meet as soon as possible and negotiate a new agreement. The Respondent, by counsel, acknowl- edged receipt of the January 12 letter, by a reply letter dated January 22. Thereafter, by letter of February 11, the Respondent advised the Union (1) that it had a "sincere and good faith doubt" that the Union represented a majority of the unit employees; (2) that Respondent could not and would not negotiate with the Union unless and 2 I find that Bonnie Beck is an office clerical employee occupying the position Jf resident's account secretary who had been instructed to report on daily happenings in the Home, although not specifically instructed to report on union sentiments of employees. 3 All dates hereinafter occurred in 1976 unless specifically noted otherwise. 146 ODD FELLOWS REBEKAH HOME until the Union established its majority status; (3) that Respondent had filed a petition on February II, with the Board's Regional Office seeking an election in which the Union's majority status could be established; and (4) that the Respondent was terminating the existing collective- bargaining agreement effective 7 a.m., April 24. The same day, February 11, the Respondent submitted a petition for election to the Regional Office which was duly docketed as Case 9-RM-749. The unfair labor practice charge in the instant case was filed February 23. Complaint issued, as noted above, on April 12, and the Regional Director then, on April 13, dismissed the petition in Case 9-RM-749. On April 22, the Respondent filed a request for review of the dismissal of the petition with the Board in Washington, D.C. On May 24, the Board issued a ruling on administra- tive action affirming the dismissal of the petition, subject to its reinstatement, if appropriate, upon disposition of the case at bar. B. Basic Findings of Fact The collective-bargaining agreement expiring April 24, provides, in pertinent part, that union membership is not compulsory, but that employees who do become members must maintain that membership for the duration of the contract, subject to a right to withdraw from membership during the 60 calendar days following the effective date or execution date of the contract, whichever is the later. Withdrawal from membership is accomplished by sending a certified letter to both the Union and the Employer during the 60-day period provided. The contract also provides for voluntary checkoff of union dues upon receipt of an employee's written request therefor. The parties, by stipulation, submitted a joint exhibit showing that on February I I, there were 99 employees in the unit, of whom 54 were listed as having their union dues checked off. Additionally, Union Steward Rice testified that in July or August 1975 she turned in 3 checkoff authorizations for Powell, Mendoza, and Cave which have never been given effect by the Respondent. Cave has since, on January 21, submitted a written request to the Employer that her name be immediately removed from the union rolls. Similarly, North, Ware, Swisshelm, Petrey, Adkins, John Palmer, and Linda Parish submitted written withdrawal requests to the Employer prior to February 11.4 It thus appears, assuming arguendo that Rice is credible regarding the three checkoff authorizations she claims to have submitted, that as of February 11, no more than 49 employees voluntarily remained on checkoff. The exhibit further shows that 75 of the 99 employees were hired subsequent to the Board- conducted election which preceded the Union's certifica- tion. I4 refused to permit the Respondent to introduce written requests by employees to withdraw from the Union postdating February 11 (which Respondent refers to as part of its "showing of interest") because the refusal to bargain admittedly commenced on February II and any good-faith doubt of majority warranting the Respondent's February II action must necessanly rest on events prior to February I I. The Respondent further excepts to the fact that I consistently sustained objections to Respondent's questions of employees regarding their "support" of the Union. I did in fact do so, although the question was more often put in the form of an inquiry into employees' subjective "desires," and I made it plain to Respondent that The General Counsel called only one witness, Union Steward Rice, who testified that in July or August 1975, she had turned over dues deduction authorizations signed by employees Margaret Powell, Lolita Mendoza, and Janice Cave to the company bookkeeper, but that no dues were withheld from their wages, and that although she gets such authorizations from some probationary employees she does not submit them until they have completed their probation- ary period. Union Area Director Jones was called as an adverse witness by the Respondent and conceded that the only physical evidence of union majority he has, other than some oral statements of support from some unspecified number of employees whose identity he did not know, consists of the dues-checkoff records. I do not credit his assertion of oral statements of support from employees because he first refused to name them, thereby clearly implying he knew their names, and then, after being directed to do so, testified that he knew no such names and admitted he knows no names of employees other than those on checkoff. The Respondent proffered testimony from 54 witnesses, including 45 unit employees, regarding statements made by 57 unit employees 5 to managerial and supervisory person- nel, in the presence of such persons, or in the presence of Resident's Account Secretary Beck who reported the employees' statements to Administrator Stamps and/or Assistant Administrator Cummins as they occurred. The overwhelming majority of these employee statements were made in December 1975 or January and all were ultimately reported to Stamps by her subordinate supervisors and Beck. An explanation for the timing of most of these statements by employees may be found in the fact that during at least the months of January and February there was considerable active antagonism between employees who supported the Union and those who did not. The genesis of this antagonism is somewhat obscure, although it was clearly exacerbated by the posting of prounion posters, presumably by union supporters, and antiunion posters which were prepared and posted primarily by employees Carolyn Adkins and Linda Farish. It appears, according to Adkins, whom I credit on this point, that the Union commenced putting up posters urging employees to support it as part of a general campaign to revitalize its support among the employees in late December 1975 or early January, and that Adkins and Linda Farish prepared and posted the notices urging employees not to support the Union sometime during the first 2 weeks in January. Further fuel was added to the fire of intramural dissension by prounion employees reporting antiunion employees' work deficiencies to supervisors, and vice versa. Addition- ally, there were reports and rumors circulating among the employees of coercive and threatening acts perpetrated by union adherents. Thus, through at least this 2-month such uncommunicated "desires" were not, in my opinion, evidence that would support a good-faith doubt. I did, however, give the Respondent wide latitude in exploring whether or not employees had indicated to the Company's management, prior to February II. that they did not support the Union. I have carefully considered these rulings and conclude they were correct and free from prejudicial error. See Retired Persons Pharmnacy, ta NRTA-AARP Pharmacy, 210 NLRB 443.450(1974). 5 Of these 57 employees, only 17 had outstanding unrevoked dues deduction authorizations on February I 1. 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period, the employees were in a turmoil and tended to gravitate toward one or the other of the two groups, even to the extent of requesting a job transfer to so do. It is clear from the record that the employees were open, even vociferous, about their respective attitudes toward the Union and became polarized into two opposing factions of employees. There is no evidence that either the Respondent or the Union instigated or promoted this polarization. Rather, it appears to have come about solely because the employees themselves, influenced no doubt by the factors recited above, disagreed on the question of union adher- ence. It is in this context of dissension and vigorous campaigning on both sides of the question that most of the statements of employees relied on by the Respondent arose. There was relevant testimony from at least two witnesses regarding the statements and attitudes of each of 48 of the employees. The evidence relating to the sentiments of the remaining nine came from but one witness for each. After the testimony of Adkins, who but for Steward Rice was the first unit employee witness, General Counsel requested and I granted sequestration of the witnesses. Thereafter it was quite obvious from the statements of the employee witnesses themselves that they had been called by the Respondent to testify without any prior preparation regarding the content of their testimony, and that their answers were spontaneous and unrehearsed. I also note from my observation of their demeanor and responses that in some cases they were not conversant with the words used by counsel, were therefore somewhat confused at times, and only gave partial answers to some of the questions put to them because they were unable to remember on such short notice some relevant details of their conversations with management and others with regard to the Union. Therefore, although (with the exception of Edith Gallagher, whose assertion that she talked to no one regarding her union desires I do not credit because she appeared uncertain in her testimony and Ely, Beck, and Cummins testified credibly to the contrary) their testimony occasionally appears confused or incomplete, I am of the opinion from my observation of their demeanor on the stand that this was due to a very human failure of instant recall which does not adversely affect their credibility except in those instances where their statements may appear to conflict with more detailed testimony of other credible witnesses. Even in these latter instances I find the testimony of the witnesses to be complimentary, rather than contradictory, in most instances. Similarly, I find that the fact that other witnesses may recall statements by an employee that the employee did not mention in his or her testimony reflects nothing more than that the employee's recollection failed or that he or she was not asked the appropriate question to elicit such information. Contrary to the General Counsel, I do not find that a failure of a witness to relate each and every instance in which he or she discussed the Union precludes other witnesses from testifying thereon, nor do I find that this 6 Richendollar. Pinkerman, Petrey, Parker, John Palmer, Swisshelm, Justice, Maddox, McCormick, Miller, Moler. Monroe, Enid Anderson, Amy Barry, Maxine Vada Berry, Campbell, Cave, Cottrell, Engle, Opal (Smith) Angle, Hazel Farish, Gallagher. Graser, Hendricks, Hesson, Hunter, failure to fully report reflects on credibility because, as the record shows, the witnesses simply were not asked to report on each and every such instance. Similarly, I reject General Counsel's credibility arguments insofar as they rely on confusion of dates or semantical differences because these alleged deficiencies in the testimony are neither sufficient to adversely affect the overall impact of the testimony nor to require conclusions different from the ones I reach from a complete examination of all the evidence. Accordingly, I have found Cummins and Beck, both of whom were particularly impressive and forthright witnesses, Stamps and the other Employer supervisors, all of whom gave me no reason to believe from their demeanor that they were not being truthful in their testimony, to be credible witnesses. I have carefully considered inconsistencies in the testimony in the light of all the surrounding circumstances and other more consistent testimony and find nothing sufficiently unacceptable to warrant any changes in my findings hereinafter set forth. As early as the summer of 1975, and even before, some employees began expressing their dissatisfaction with the Union in various ways and this continued until the Respondent refused to bargain on February 11. I do not refer to the possibility those expressions of sentiments may have continued after February 11 because I excluded all evidence relating to postrefusal-to-bargain events and place no reliance thereon as a basis for my findings and conclusions herein. These statements and accompanying acts by employees grew to a crescendo in December 1975 and January. Subsequent to the Union's request for bargaining of January 12, Administrator Stamps collated the reports she had received from her supervisors and Beck regarding employee sentiment together with the statements of employees made directly to her, and after examination with counsel of the results thereof the Respondent notified the Union that it doubted its majority and filed a petition for election, as hereinabove recited, on the basis of an asserted belief that some 62 of the 99 unit employees no longer wished to be represented by the Union. From my examination of the evidence, I conclude that at the time of the refusal to bargain Stamps had received reports that 38 employees 6 (in addition to Carolyn Adkins and Linda Farish who by their aggressive antiunion campaigning openly indicated their desire not to be represented by the Union), through statements that they did not want the Union, did not want to be represented by it, did not need it, did not want any part of it, did not believe in it, did not like it, it was of no benefit to them, the Union was no good, it did nothing for employees, they were opposed to the Union, they hoped they did not get the Union back, and similar statements of the same import, were dissatisfied. Of course each employee did not make all of these statements but the foregoing is a representative summary of their individually expressed statements. Hubbard, Townsend, Wade, Waldron, Ware, Weaver, Williams. Larason, Luttrell. Rose, Moot, and Sheets. 148 ODD FELLOWS REBEKAH HOME In addition, Stamps was aware that seven 7 employees had said they would quit if they had to join the Union, nine s had expressed a desire to withdraw from union membership, four9 did not want to belong to the Union, one 10 reported that she was not a union supporter because she could not afford it, and six" had said they had joined the Union because of fear of reprisals or because they had been harassed by union adherents.'2 I am convinced that the foregoing statements made by employees with regard to their sentiments toward the Union were spontaneous and voluntary expressions of their honest feelings on the matter, and were not the result of Employer pressure or unfair labor practices. C. Discussion and Conclusions The standards applicable to the determination of whether or not the Respondent permissibly refused to bargain are firmly established and were recently succinctly stated by the Board in Dalewood Rehabilitation Hospital, Inc. d/b/a Golden State Habilitation Convalescent Center, 224 NLRB 1618 (1976), as set forth below: In Terrell Machine Company, the Board explained the test as follows: It is well settled that a certified union, upon expiration of the first year following its certifica- tion, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargaining relationships, without im- pairing the free choice of employees. Accordingly, once the presumption is shown to be operative, a primafacie case is established that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer affirmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed majority representative status; or (2) that the employer's refusal was predicated on a good-faith and reasonably grounded doubt of the union's continued majori- ty status. As to the second of these, i.e., "good- faith doubt," two prerequisites for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union. [This second point means, in effect, the assertion of doubt must be raised "in a context free of unfair labor practic- es."] It is also well settled that the existence of a prior contract, lawful on its face, raises a dual presumption of majority - a presumption that the Union was the majority representative at the time the contract was executed, and a presumption that its majority contin- T Emily Anderson, Hubbard, Larason, Luttrell, Rose, White and Wilson. I Karen Palmer, Loveless, Cnppen, Fahl (the union steward), Hines, North, Preston, Rife, and Swisshelm. 9 Moot, Young, Wilcox, and Underwood. 1t Robinson. ued at least through the life of the contract. Following the expiration of the contract, the presumption con- tinues and, though rebuttable, the burden of rebutting it rests on the party who would do so. [Citations omitted.] The General Counsel relies on the extant presumption of majority in the instant case and takes the position that the Respondent has failed to meet its burden of rebutting the presumption. On the other hand, the Respondent contends that the test of good-faith doubt based on objective considerations has been met and, further, that the evidence shows that the Union no longer in fact enjoys majority representative status. In support of its assertion of good-faith doubt the Respondent relies on cumulative factors which it enumer- ates as (1) employee turnover; (2) less than a majority of employees on checkoff; (3) low level of union activity; (4) union organizational efforts to secure a majority; (5) the overt sentiments of the employees; and (6) the report of employee antiunion sentiments to the Respondent's man- agement. Additionally, the Respondent adverts to its filing of a petition for a Board-conducted election "to preserve its good faith position." The Respondent concedes and I find that the 75 percent employee turnover since the 1972 election is not, "standing alone," sufficient to support a finding of good-faith doubt. Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965). However, it is a factor which may be considered in conjunction with other factors relied on. Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801, 803 (1973). Similarly, I find that the fact that less than a majority of unit employees were on unrevoked dues checkoff does not show a loss of majority, nor does it establish a reasonably based doubt of that majority. Guerdon Industries, Inc., Armor Mobile Homes Division, 218 NLRB 658 (1975). I would note, however, that the employees' communications to the Respondent that they wished to withdraw from union membership constitute more than a mere request to be relieved from checkoff and do rise to the stature of a valid objective consideration supportive of a finding of good- faith doubt of majority, Phil-Modes, Inc., and Harold Berlin d/b/a Berlin Coat ManufaCturing Co., 159 NLRB 944, 959 (1966); Stresskin Products Co., Division of Tool Research and Engineering Corporation, 197 NLRB 1175, 1178 (1972). I find that item (3) which asserts a low level of union activity is unsupported by any reasonable quantum of evidence and is eroded by the fact that the Union was instrumental, as late as January, in securing Jack Parker's reinstatement. Further, as to (4), I do not find it unusual, but rather quite predictable, that the union should engage in increased organizational efforts to bolster its bargaining power on the eve of the expiration of the existing collective- bargaining agreement, nor do I find this activity or accompanying statements of union officials which are plainly directed at strengthening the Union's bargaining " Swisshelm. May, Richendollar, Moore, John Palmer, and Petrey. 12 An examination of the names of employees set forth in the margin will demonstrate that some employees made more than one of the statements recited above and that the total number of employees making such statements is 57. 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position to be valid bases on which to posit a good-faith doubt of majority. It is true, as the Respondent contends in (5) and (6), that employees freely and openly discussed their sentiments toward the Union and it had to be clear to the Respondent from the extensive and explicit postings by both factions that there was considerable disagreement among the employees with regard to the Union. The testimony clearly revealed a pervasive atmosphere in the Home of tension among the employees punctuated with complaints of harassment, statements of fear of reprisal from union adherents, and accusations of actual reprisal visited upon pets and automobiles of employees who would not support the Union. Again, this aura of uneasiness and dissension could not have escaped the notice of the Employer, nor could the huddling together of groups of employees of opposing views. Against this background, the Respondent was fully justified in concluding that Adkins, Linda Farish, and the other 38 employees named in footnote 6, who in various ways indicated their dissatisfaction with the Union, wished to repudiate the Union as their representative. The knowledge that seven employees had threatened to quit, rather than join the Union, warranted a belief that they did not want to be represented by the Union (Cf. Service Canvas Company, Inc., 198 NLRB 88 (1972) (Kolesnick)), and the expressions of a desire to withdraw from union membership by nine employees which were communicated to the Employer, in an atmosphere free of Employer coercion, gave rise to a reasonable conclusion by the Respondent that they did not want union representa- tion, Phil-Modes, Inc., supra. Further, the statements by four that they did not want to join the Union, while not conclusive of their desires, absent some other explanation of the reason why, might well give the Respondent reasonable cause to doubt they were favorably inclined toward union representation. I discount reliance on the report that Robinson did not support the Union because she couldn't afford it as a valid objective consideration because on its face it would appear that Robinson might well support the Union if she could afford it. As to those employees who stated they had joined the Union because of harassment or fear of reprisals, the Respondent could fairly conclude that their support of the Union was limited to coerced membership and that the fact they joined under pressure implied a resistance to union representation that was overcome only by fear, whether such fear was well founded or not. Thus, the Respondent had reports that 56 13 See Stresskin Products Co., supra at 1178-79, for Administrative Law Judge Wilson's perceptive discussion of the difference between a good-faith "doubt" and "certitude." unit employees (excluding Robinson) had indicated their dissatisfaction with the Union in various ways. Although there may be weaknesses in some of the factors relied on by the Respondent, when considered individually, I am of the opinion, as the Respondent contends, that a consideration of the evidence in its entirety establishes that the Respondent had sufficient objective grounds upon which to reasonably conclude that there was a serious doubt of the Union's majority status,i3 and that such doubt arose in a context free of unfair labor practices or any evidence of bad faith by the Employer.14 In so finding I do not rely on the filing of an RM petition by the Respondent, which the Respondent attempts to equate with an RD petition filed by employees, because the filing of a petition for election by an employer is not necessarily indicative of employee support thereof, whereas a petition filed by employees requires a showing by the employees themselves that they do not wish to be represented by a given union. Although I find that the Respondent had a "good-faith and reasonably grounded doubt of the union's continued majority status" when it refused to bargain with the Union on February 11, 1 cannot, as the Respondent urges I do, on the basis of the evidence before me, find that the Union did not in fact enjoy majority status on February 11, even though the Union's stated proof of majority consists only of the dues-checkoff list which is suspect in view of the attempts and reported desires of employees listed thereon to withdraw from membership, nor need I do so in view of my finding that the Respondent had a good-faith doubt warranting the refusal to bargain. Having considered all the evidence and the arguments of the parties, I conclude that the Respondent had reasonable grounds to believe that the Union no longer enjoyed majority status. Accordingly, I conclude that the Respon- dent did not violate Section 8(aX5) or (1) of the Act as alleged in the complaint, and make the following: CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. General Counsel has not established by a preponder- ance of the evidence that the Respondent has violated the Act as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 14 Taft Broadcasting, supra. 150