Washington Manor Nursing Center

WASHINGTON MANOR NURSING CENTER (SOUTH) 315 Washington Manor, Inc., doing business as Washing- ton Manor Nursing Center (South) and National Union of Hospital and Nursing Home Employees Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO. Cases 9-CA-7857 . . June 11, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On December 28, 1973, Administrative Law Judge Sidney D. Goldberg issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. 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 conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Washington Manor, Inc., doing business as Washington Manor Nursing Center (South), Centerville, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' The General Counsel argued that the Administrative Law Judge erred in granting the Respondent's motion for severance of this case from Case 9-CA-7856 with which it had originally been consolidated . Contrary to the General Counsel , we find that this ruling involved an exercise of the Administrative Law Judge's discretion, and that he did not abuse his discretion in ordering severance . See Richmond v. Weiner, 353 F.2d 41, 44 (C.A. 9, 1965), cert. denied 384 U.S. 928, rehearing denied 384 U.S. 994; Federal Rules of Procedure, Rule 42(b); Sec . 10(b) of the Act ; and Sec. 102.35 (h), Rules and Regulations, Series 8, as amended. The General Counsel also argued that the Administrative Law Judge erred in not relying on a notice to employees dated June 8, 1972, in reaching his conclusion that the Respondent violated Sec. 8(aX5) and (1). This notice was offered at the trial "as background," and paraphrased contract language to advise employees how to withdraw from the Union. We concur with the Administrative Law Judge's determination to forego relying on this notice, but for different reasons. The General Counsel now seeks to use the notice to find a violation of the Act when he only introduced it "as background." This cannot be done since it goes beyond an attempt to "shed light" on matters occurring within the 10(b) period, and thus conflicts with Supreme Court's decision in Bryan Manufacturing Co. v. N.L.R.B., 362 U.S. 411 (1960). 2 We specifically disavow any reliance on the Administrative Law Judge's extrapolations of "Estimated percentage of union support" as set forth in sec. 4(b)(5) of his Decision. 3 Respondent's request for oral argument before the Board is denied as the record and briefs adequately present the issues and positions of the parties. DECISION SIDNEY D. GOLDBERG, Administrative Law Judge: This case, involving one of two nursing homes operated by Washington Manor, Inc., in and near Dayton, Ohio, raises the question of whether Respondent was justified in claiming a good-faith doubt of the Union's representative status and refusing to bargain with it upon' the expiration of the first contract following the Union's certification. A similar question was raised concerning Respondent's similar action with respect to the Union at its other nursing home in the area. The Regional Director ordered the two cases consolidated for hearing .and issued, pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), a single ,consolidated complaint.' Respondent answered and, when the issues raised by the answer came on for trial before me at Moraine, Ohio, on September 18, 1973, it moved that the cases be severed. In view of the factual differences between the situations at the two installations, the motion to sever was granted, but, because the same persons were involved as parties and witnesses, the trial proceeded with respect to both cases. Consistent with the order of severance, however, separate Decisions are being issued with respect to each of these nursing homes, and they have been reentitled in accordance with that order and with stipula tions at the trial. This Decision deals with the installation at 7300 McEwen Road, in Centerville, called Washington Manor Nursing Center, South. With respect to this installation, the complaint, as amended at the trial, alleges that, after an election held October 20, 1971, National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO (the Union) was, on December 22, 1971, certified as the collective-bargaining representative for all full-time and regular part-time employees employed at the respondent's Washington Manor Nursing Center (South) located at 7300 McEwen Road, Centerville, Ohio, including nurses aides, orderlies, maids, kitchen help, maintenance employees, receptionist, and laun- dresses, but excluding all licensed practical nurses, co- op students, the beautician, the dietary consultant, registered nurses, doctors, and all other professional employees, guards, and supervisors as defined in the Act; that on or about June 6, 1972, the Employer and the Union entered into a collective-bargaining agreement terminating May 15, 1973; 2 that on March 3 the Union served notice of its desire to terminate or modify the contract and, commencing April 4, requested the Company to meet for bargaining, but that the Company, then and since, has unlawfully refused to bargain with the Union. The complaint also alleges that, on April 18, the Company 1 Issued August 21, 1973, on charges filed June 21, 1973. 2 All dates hereinafter are 1973 unless otherwise specified. 211 NLRB No. 23 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened an employee with discharge unless he withdrew from the Union and, on May 7, unlawfully interfered with, coerced, and restrained its employees in their exercise of self-organizational activities by the contents of a notice posted on the employee bulletin board. The Company answered, admitting the background facts alleged in the complaint and its refusal to bargain with the Union, but denying that it had interfered with employees' self-organizational activities or that it had otherwise acted unlawfully. The issues so raised came on for trial before me as set forth above. All parties were represented; they were afforded an opportunity to adduce evidence, cross-exam- ine witnesses, and argue upon the facts and the law. Briefs filed by the General Counsel and by counsel for Respon- dent have been considered. For the reasons hereafter set forth in detail, I find that Respondent threatened an employee with discharge unless he withdrew from the Union and thereby coerced and restrained him; I also find that Respondent did not have a good-faith doubt, based on objective considerations, concerning the status of the Union as the collective- bargaining representative of the above-described employ- ees and that, therefore, its refusal to bargain with the Union violated Section 8(a)(5) of the Act. Upon the entire record herein,3 and considering the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT members of the Union, but that those employees who, 60 days after the execution or effective date of the contract, are still members of the Union, all employees who thereafter become members of the Union, and all newly hired employees who join the Union within 60 days after the commencement of their employment shall maintain their union membership as a condition of their employ- ment during the term of the contract. The contract also includes a form entitled "Wage Assignment and Dues Deduction Authorization" and it provides that the employer will deduct, from the wages of any employee who delivers an executed copy of the form to it, the amount of that employee's union dues and pay it to the union. The Union is required to supply the employer, 60 days after the execution or effective date of the contract, with the names of its members and to keep the employer informed of all changes in its roster. The contract term was from May 15, 1972, to May 14, 1973, and automatically for yearly periods thereafter in the absence of notice of intention to modify or terminate it by either party not more than 90 days or less than 60 days prior to its expiration date. In accordance with this termination provision, the Union, by letter dated March 3 to Thomas Duffy, Respondent's administrator, gave notice of its intention to negotiate a new agreement and requested a meeting with his representative " as soon as possible." David Jones, the Union's area organizer, testified that he thereafter tried, in person and by telephone, to arrange for a meeting to negotiate a new contract but that he was unsuccessful in these efforts. 1. The parties Washington Manor, Inc., an Ohio corporation, operates two nursing homes in the Dayton area. Its operation of the installation involved in this case is conducted under the name Washington Manor Nursing Center, South. It admits that its annual revenues exceed $100,000; that it annually imports materials valued at more than $50,000; and that it is an employer engaged in commerce as that term is defined in the Act. I so find. Local 1199 of the Retail, Wholesale and Department Store Union, AFL-CIO, is a nationwide organization of hospital and nursing home employees. It is divided, for organizational purposes, into many "affiliates" covering as much territory as several States, and each of them is designated by a different initial or abbreviation following the local number. Dayton is in the tristate area consisting of Ohio, Indiana, and Kentucky and the affiliate covering that area is designated by the initial "H" following the local number "1199." The complaint alleges that Local 1199H is a labor organization, the answer admits this allegation, and the 1972 collective-bargaining contract signed by Respondent is with Local 1199H. I find that the Union is a labor organization. 2. Background and chronology The contract between Respondent and the Union provides that employees shall not be required to be 7 Typographical errors in the transcript of proceedings have been corrected by order dated December 14, 1973, and, as hereafter noted, 3. The issues The General Counsel contends that Respondent's efforts to persuade its employees to abandon their support of the Union and its threat to discharge an employee if he did not resign from the union were unlawful; that the Union's status as representative of a majority of the employees is presumed to have continued, and that Respondent, not having proved that there were objective considerations which justified its claim of a good-faith doubt concerning the Union's status, was obligated to bargain with it. Respondent contends that the conversation with, and notices to, its employees, alleged by the complaint to constitute restraint and coercion, were statements of fact, argument, and opinion protected by Section 8(c) of the Act; that there were objective considerations, including the high rate of turnover and an admitted lack of majority membership in the Union, that justified it in entertaining a good-faith doubt that the Union represented a majority of the employees in the unit; and that, therefore, it was not obligated to bargain further with the Union. 4. Discussion and conclusions a. Interference, restraint, and coercion One of the principal contentions of the General Counsel is that Respondent's conduct in interfering with its employees' rights of self-organization and in coercing and Respondent's revised version of its Exh. 15 has been substituted for the exhibit received at the trial. WASHINGTON MANOR NURSING CENTER (SOUTH) 317 restraining them in their exercise of those rights precludes a finding that it entertained a good-faith doubt concerning the Union's status as collective-bargaining representative. Accordingly, it becomes necessary, at the threshold of this discussion, to examine the evidence concerning this interference, restraint, and coercion, both as it affects the validity of Respondent's claim to a good-faith doubt and as it supports the independent violations of the Act alleged in the complaint. Robert Surface, an orderly since 1969, testified that on April 19, Administrator Duffy met him in the hall, took him into a private office, and said: "I am not going to have my good help threatened." When Surface asked him what he meant, Duffy said: "You threatened two of the girls. You are asking them to join the union and threatening them if they didn't join the union." Surface denied having threatened anyone, but Duffy said that "it came from the horse's mouth" and Surface, admitting that he had asked the employees to sign union cards, again denied any threats. Duffy then said, according to Surface, "I have done a lot of work in this place to really build it up since I took it. You are not going to sink me." Surface asked what Duffy meant by "sink me" and Duffy said: "I mean I want you to withdraw from the union and I am giving you one week to withdraw from it until next Friday. I want a letter of resignation on my desk or you are going to be fired." Duffy was not questioned concerning this exchange and, therefore, did not deny it. There is nothing inherently improbable in Surface's testimony and no reason to reject it. Accordingly, I find that the exchange occurred as he described it. In its brief, Respondent argues that Duffy was engaged in investigating the complaint of the employees to determine whether there had been a violation of the contract provision, as well as the Company's rule against harassment, and that his questioning, therefore, was not violative of Section 8(a)(1). The determination of whether Duffy's statements were violative of the Act does not turn on the questioning and it is not necessary to determine the point raised by Respondent. The allegation of the complaint, added by oral amendment, was that Respon- dent violated the section by "the conduct of said Thomas Duffy on or about April 18, 1973, threatening an employee by telling him that he had until next Friday to withdraw from the union." The undisputed testimony shows that Duffy threatened Surface with discharge unless he with- drew from the Union by the following Friday. It requires no citation of authority to show that this threat constituted coercion violative of Section 8(a)(1) of the Act and I so find. The complaint also alleges that a notice posted on the employees' bulletin board on or about May 7, 1973, had the "specific purpose of undermining the union as the duly designated bargaining representative of its employees." The notice, dated May 7, consists of six paragraphs, only one of which refers to the Union; that paragraph reads as follows: Union Contract: The Manor's labor contract with 1199- H will expire on Tues. 15 May. Don't let our employees become unduly alarmed about the rumors they might hear during the coming weeks. This matter, just like everything else in life, will be resolved reasonably. Two nursing homes in Cincy who have labor contracts with 1199-H (Villa Hope and Medi-Centers) have recently gone bankrupt and out of business. We don't want this to happen to the Manor. At the close of the General Counsel's principal case, Respondent moved to dismiss this allegation for lack of proof.4 Decision on the motion was reserved and the General Counsel was directed to brief this point specifical- ly-There is nothing in the General Counsel's brief relevant to this point except a repetition of the language of the notice and citation of general authorities. This language, although undoubtedly designed to engender concern by the employees, relates the closings of the other two nursing homes to bankruptcy rather than to antiunion action by those managements, making tenuous any implication of similar action by Respondent. I find this statement to constitute argument protected by Section 8(c) and not interference, restraint, or coercion violative of Section 8(a)(1) of the Act .5 One further reference in the General Counsel's brief in connection with violations of Section 8(a)(1) is to the notice posted on June 8, 1972. This notice purports to explain provisions of the then recently executed contract with the Union, including a method of withdrawing from the Union, a possible employee action recognized in the contract. There is no allegation in the complaint under which this evidence can be considered and the General Counsel stated at the trial that it was offered "as background." In his brief, however, the General Counsel argues that, since Duffy admitted that this notice had never been withdrawn and that he had, on employees' requests, explained the manner in which they could withdraw from the Union, it should be considered as part of Respondent's "calculated plan" to undermine the Union. the evidence does not support this argument and no such finding will be made. b. The refusal to bargain (1) The facts The facts concerning Respondent's refusal to bargain with the Union are simple and not in dispute. Duffy testified that about March 5 he received the Union's letter notifying him that the contract would expire on May 14 and requesting a meeting, as soon as possible, to negotiate a new agreement. He discussed this demand with Les Pointer, the administrator of Washington Manor Nursing Home North, who had also received a demand from the union and he had a number of conversations over the following weeks concerning the apparent strength of the union at both nursing homes as reflected by the dues- deduction authorizations on file. On April 6, Pointer and Duffy met with Paul Moody, president of Washington Manor, Inc. They both had with them graphs showing the Union's "deduction strength" compared with the "total 4 On rebuttal, Jones testified that the Union had never had a contract with Medi-Center because it had lost the representation election ; that it did have a contract with Villa Hope and that both nursing homes had closed. 5 The minor factual misstatement does not affect this conclusion. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership eligibility." It showed, according to Duffy, that fewer than 50 percent of the employees in the bargaining unit were members of the Union. They decided to postpone any decision on the subject. Pointer and Duffy continued to discuss the subject at frequent intervals and, on May 4, Pointer suggested that Respondent "might want to consider a refusal to bargain on the basis that it appeared that the union did not hold a majority of employees as members." Duffy agreed with Pointer and, after consulting with counsel, made the determination that there would be no bargaining with the Union for the employees at either of the nursing homes. Accordingly, by letter from counsel, the Union was notified, on May 8, that Respondent took the position that the Union did not represent a majority of the employees in the bargaining unit and would not meet for negotiations. Respondent concedes that it has not, since that time, bargained with the Union and contends that it is not under a legal obligation to do so. (2) The basis for Respondent's "good-faith doubt" Duffy testified that it was in March and April, after receiving the Union's request for bargaining, that he began to gather statistics on the numbers of employees in the unit and the number of checkoff authorizations on file and that, about April 6, he came to the conclusion that throughout the 11 months of the contract term that had already expired the Union had never had a majority of the employees as members . Duffy testified that his decision not to bargain with the Union was based upon these statistics and upon his judgment "on what I felt was wanted by the majority of the employees." He denied that he had relied upon any "close election" because the election results at the two nursing homes were "considera- bly different," but he nevertheless insisted that, in his opinion, the Union "never had a majority at anytime." He also stated that he had been surprised at the "small number of cards," i.e., checkoff authorizations received after the contract had been signed, and that this indicated to him that the Union did not have a majority. He also testified that he took into consideration the turnover in the work force, which, he stated, was about 100 percent each year. Finally, Duffy testified, he took into consideration the comments by and questions from employees who asked him how they could withdraw from the Union .6 (3) The applicable rule for decision There is no dispute concerning the rule of decision applicable to situations similar to that in this case. It is most clearly stated by the Board in Terrell Machine Company, 173 NLRB 1480,7 as follows: It is well settled that a certified union, upon expiration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues.' This presumption is designed to promote stability in collective-bargaining relationships, without impairing the free choice of employees.2 Accordingly, once the presumption is shown to be operative, a prima facie 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,3 or (2) that the employer's refusal was predicat- ed on a good-faith and reasonably grounded doubt of the union's continued majority 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 4 and it must not have been advanced for the purpose of gaining time in which to undermine the union.5 ' Celanese Corporation ofAmerica, 95 NLRB 664, 671-672. 2 Id a "Majority representative status" means that a majority of employees in the unit wish to have the union as their representative for collective bargaining purposes. ID. A See Laystrom Manufacturing Company, 151 NLRB 1482, 1484, enforcement denied on other grounds (sufficiency of evidence) 359 F.2d 799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB 480 (TXD); N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5, 1966), enfg. 147 NLRB 997. And cf United States Gypsum Company, 157 NLRB 652. 5 C & C Plywood Corporation, 163 NLRB 1022; Bally Case and Cooler, Inc., 172 NLRB 1127. After correctly summarizing the foregoing rule, Respon- dent's brief argues that [respondent] had a good faith doubt of the union's majority status, and at the hearing it proved that this good faith doubt was based upon objective standards. The high turnover, minority of employees on checkoff, unsuccessful signup efforts, poor employee support, and lack of representation all juxtapost [sic] into a clear good faith position exculpating [respondent] from any violation of Sec. 8(a)(5) of the Act. This argument does not include-as it could not-the contention that Respondent relied upon anything except its claimed good-faith doubt concerning the Union's ,representative status as there is no evidence upon which Respondent can validly argue that it has established in fact that, on May 7, 1973, the Union was not the representative of the employees in the unit.8 (4) Turnover among employees Duffy testified that there was a turnover of about 100 percent each year among Respondent's employees; that turnover was one of the factors on which Pointer relied in !recommending that Washington Manor, Inc., refuse to bargain with the Union at its North nursing home and that he relied upon this same factor in reaching a similar decision at Respondent's facility. Duffy also testified that he was "surprised at the small number of cards" which were delivered to him after June 12 under the contract provision for checkoff. He made this point in reference to the result of the election, which the Union won by 40 to 17, 6 There is no evidence that Duffy knew about, or made any particular Cash Register Company, 201 NLRB 1034. point concerning, the union's effort to sign up additional employees . 8 Compare GAF Corporation, 195 NLRB 169, where it appeared that the 7 Enfd. 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929 (1970). employer had been given a copy of a decertification bearing the names of a The same standard was recently reaffirmed by the Board in The National majority of the unit employees. WASHINGTON MANOR NURSING CENTER (SOUTH) these figures indicating that the Union was supported by 70 percent of the employees9 who voted and, in fact, by a majority of all the employees in the unit, estimated at 75 at the time. As stated above, the collective-bargaining contract executed on June 6, 1972, contained a provision permitting employees to have their union dues checked off by Respondent and, by June 12, there were 34 such authoriza- tions on file as compared with 70 employees then in the bargaining unit. While these figures show that only 49 percent of the employees were actually union members, it would be superficial to conclude that these 34 members measure the totality of the union's support. From this figure, however, Respondent argues that the turnover of employees between the election and June 12 had dissipated the Union's representative status. This argument must be rejected. The Board has ruled, with court approval, that turnover among employees cannot, by itself, be used as the basis for a belief that the union has lost its support since it is presumed that, absent evidence that would justify a contrary conclusion, new employees will support the union in the same ratio as those whom they have replaced. In Laystrom Manufacturing Co., 151 NLRB 1482, 1484-85,10 the Board wrote: Employee turnover standing alone does not provide a reasonable basis for believing that the Union had lost its majority since the prior election. The Board has long held that new employees will be presumed to support a union in the same ratio as those whom they have replaced.? There is no rebuttal of that presumption here, and no independent evidence from which the inference may be drawn that the new group of employees replaced union adherents or that they supported the Union less strongly than the old group. Indeed, the Respondent adduced no competent and probative evidence to establish that any employees, new or old, no longer wished to be represented by the Union. r John S. Swift Company, Inc., 133 NLRB 185, enfd. 302 F.2d 342 (C.A. 7); National Plastic Products Company, 78 NLRB 699, 706, affd. 175 F.2d 755 (C.A. 4). Cf Small Tube Products, Inc., 134 NLRB 867, afId 319 F.2d 561 (C.A. 3). and it has since reiterated that position.1' In N.L.R.B. v. The Little Rock Downtowner, Inc., 414 F.2d 1084 (C.A. 8, 1969), cited and relied on in respon- dent's brief, the court wrote, on this subject, at page 1091: The respondent and the Board stipulated to the high turnover in company personnel since the union was certified. However, employee turnover alone does not provide a reasonable basis for concluding that a union has lost its majority status. N.L.R.B. v. John S. Swift Co., 7 Cir., 1962, 302 F.2d 342, 345; N.L.R.B. v. National Plastic Products Co., 4 Cir., 1949, 175 F.2d 9 The precise figure is 70. 17 percent, All percentages hereafter, unless otherwise noted, are rounded to the nearest two-digit number. 10 Enforcement denied 359 F.2d 799 (C.A. 7, 1966). 11 Printers Service, Inc., 175 NLRB 809, 812, enfd. 434 F.2d 1049 (C.A. 6, 1970); Massey-Ferguson, Inc., 184 NLRB 640, enfd. 78 LRRM 2289 (C A 7, 1971); The National Cash Register Company, 201 NLRB 1034. i2 At the close of the trial there was discussion concerning the accuracy 319 755, 759; N.L.R.B. v. Small Tube Products, Inc., 3 Cir., 1963, 319 F.2d 561, 563. Here, there was no independ- ent evidence from which it may have been inferred that respondent's new employees did not support the union. From the foregoing, it follows that Respondent could not properly rely on mere turnover as justification for a "good faith doubt" concerning the Union's status as the collec- tive-bargaining representative of its employees in the unit and there is no evidence to justify a departure from the Board's rule stated above. Accordingly, I find that the Union was supported, on June 12, 1972, by the same percentage of the employees as that disclosed by the vote in the Board election, and that the 49-percent membership on that date connotes the support of the same percentage of the employees, i.e., 70 percent, as that which manifested its support of the Union in the election. (5) The percentage of employee-members of the Union Pointer testified that, from the very beginning of the contract term, he kept a record of the comparison between the number of employees in the unit at the North facility and the number of dues-checkoff authorizations on file there and that it was principally on these figures that he relied in making his recommendation that Washington Manor, Inc., refuse to bargain with the Union for a new contract at the facility which he administered and Duffy testified that he relied on Pointer's figures reaching back to the commencement of the contract term in accepting his recommendation. Duffy further testified that he examined the figures showing checkoff authorizations at his facility for the months of March, April, and May in reaching a similar conclusion with respect to the facility for which he was the administrator. It was Pointer, however, who testified that the figures, for both facilities, in revised form, were supplied to Respondent's counsel for use in the trial of this case. During the trial, there were received in evidence, at the request of the parties, several documents reflecting the names and total number of employees in the unit at various times and there is considerable testimony, cross-examination, and argument in the record concerning the accuracy of the information contained in these documents. One of these documents, however, represents the final analysis and refinement of all those which led up to it. This document was prepared by Respondent's counsel on the basis of other material in the record: it shows, as of June 12, 1972, as of the first day of each month thereafter to and including May 1, 1973, and as of May 15, 1973, the number of employees in the bargaining unit and the number of those employees who had executed checkoff authorizations. The other parties have had ample opportunity to examine the basic data supporting these figures and have interposed no objection to them.12 The of the figures on Resp. Exh. 15, a schedule showing the comparison, on certain dates, between the number of employees in the unit and the number of dues-checkoff authorizations on file with Respondent . Respondent's counsel agreed to prepare a new version of this exhibit and the other parties were given 15 days from receipt of a copy of the revised exhibit to file any application concerning it. The revised exhibit was subsequently filed with me, with a certificate of service on the other parties dated October 5, 1973. (Continued) 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union conceded that all of its members in Respondent's employ in the unit signed checkoff authorizations and that it delivered them to Respondent. It follows, therefore, and I find, that this schedule (Respondent's Exhibit 15 as revised) accurately shows the number of union members among Respondent's employees in the unit on the dates set forth therein.13 This schedule shows, as Pointer testified his continuing survey disclosed to him, that at no time during the term of the collective-bargaining contract were there checkoff authorizations on file from a majority of the employees in the unit, but that the percentage varied between 42 and 49. It is on the basis of these figures, as objective considera- tions, that Respondent contends that it was entitled to entertain a good-faith doubt that the Union was the collective-bargaining representative of a majority of the employees in the unit. But this testimony and this contention disclose Respondent's basic error in reaching its conclusion not to bargain with the Union; it equates union support with union membership. It is, however, union support which is the true test of majority representation. The Board's rule on this point, as set forth in Terrell Machine Co., supra, 1481, is as follows: a showing as to employee membership in, or actual financial support of, an incumbent union is not the equivalent of establishing the number of employees who continue to desire representation by that union.6 There is no necessary correlation between membership and the number of union supporters since no one could know how many employees who favor union bargaining do not become or remain members thereof. According- ly, the Trial Examiner's finding here that on July 3, only 41 of the 90 employees in the unit were dues-paying members does not justify his conclusion that on that date the Union did not represent a majority of the Respondent's employees. 6 United Aircraft Corporation, supra (TXD); N L.R.B. v. Gulfmont Hotel Company, supra. and the rule was recently applied in The National Cash Register Company, supra. In determining whether there were objective considera- tions sufficient to justify a good-faith doubt concerning the Union's representative status, Respondent was obligated to consider more than the number of union members in the unit at any particular time. It should also have taken into consideration the relationship between the union's majori- ty vote in the election and the number of checkoff authorizations at the beginning of the contract term. It could not, with objectivity, disregard the relationship between the number of checkoff authorizations filed and the number of votes for the union by shifting the basis for determining majority representation to the total number of employees in the unit and ignore the fact that a substantial number of eligible voters failed to vote. It could not, No application has been filed by any other party concerning this exhibit and, accordingly, the revised version has been placed in evidence, superseding the one introduced at the trial. 13 Undisputed testimony shows that checkoff authorizations executed by newly hired employees were not delivered to Respondent until the completion of the employee's 60-day probationary period and that the figures in the schedule showing the total number of employees in the unit therefore, regard the union's support as identical with its membership. A similar situation, with the same argument, was before the Board in Gulfmont Hotel Company, 147 NLRB 997, enfd. 362 F.2d 588 (C.A. 5, 1966). Although in that case the number of employees in the unit on a month- to-month basis did not appear, the election had resulted in a 111-106 victory for the union at a time when there were 224 employees in the unit. During the 10 months prior to the company's determination that the union no longer represented a majority of the employees, there were between 64 and 74 checkoff authorizations in effect. Rejecting the employer's reliance on the number of checkoff authorizations in effect as its justification for entertaining a good-faith doubt of the union's majority representation status, Trial Examiner Boyls wrote, at pages 1001-2: ... the fact that less than a majority have authorized such checkoffs is immaterial to the issue of majority status. Employees for various reasons unconnected with their desire to have a union represent them, may fail to execute checkoff authorizations. There may be some who prefer, as a matter of principle, to pay their financial obligations in person; there may be others who prefer to decide when and if they can afford to spare the money for dues and fees; and there may even be some who are willing to vote for and accept union representation but who decide to be free riders and enjoy the expected benefits of representation without paying for them at all. Accordingly, although the voluntary signing of checkoff authorizations by a majority in the unit may be considered as evidence of a union's majority status, the converse is not true. The fact that a majority in the unit do not sign such authorizations has no bearing on the majority issue. This statement was adopted by the Board, and the court of appeals, enforcing the Board's Order, wrote (362 F.2d at 591, 592): No one knows how many employees who favored the unions had decided not to authorize the company to deduct union dues or how many who favored union bargaining were not even members of the unions. s The flaw with the respondent's reasoning here is that there is no necessary connection between the checkoff list and the number of union supporters. There was no compulsory checkoff ... . The same point was recently repeated by the Board in The National Cash Register Company, supra. Respondent's schedule, therefore, is useful but incom- plete. A practicable basis for estimating union support can include probationers. A footnote to the schedule, however, states that the number of existing checkoff authorizations on each date is based on their date of execution rather than their date of filing with Respondent. Since the revised schedule was prepared more than 60 days after the last date shown thereon, it appears that any imbalance resulting from this time lag has been erased. WASHINGTON MANOR NURSING CENTER (SOUTH) 321 be derived by applying, to Respondent's figures of union membership, the relationship between such membership on June 12 and the manifestation of union support shown in the election. As found above, the 49-percent membership on June 12 may properly be regarded as the equivalent of the 70-percent union support shown in the election. To determine the extent of union support, as contrasted with union membership, Respondent should have extended its schedule to include an additional column, applying this 70 to 49 ratio to each of the figures showing the percentage of union membership . These two columns would have given Respondent the following information: %of Est.% EInp l . on , of Union Date Checkoff Support 1972 6/12 49 70.00 7/1 45 64.28 8/1 42 60.00 91/1 49 70.00 10/1 47 67.14 11/1 46 65.71 12/1 47 67.14 1973 1/1 45 64.28 2/1 43 61.42 3/1 42 60.00 4/1 46 65.71 5/1 44 62.85 5/15 44 62.85 From these figures it appears that, on or about March 5, when Duffy received the Union's request for bargaining, his survey, if properly adjusted to show union support, would have informed him that, as of March 1, the union was supported by 60 percent of the employees in the unit; that, after April 6 when, he testified, he and Pointer "up- dated" the figures, they would have shown that the union was supported by more than 65 percent and thereafter, on May I and 15, that it was still supported by more than 62 percent. These figures, therefore, would not constitute the "objective considerations" upon which a good-faith doubt may be founded. Requiring Duffy and Respondent to recognize the difference between union membership and union support does not, in my opinion, place an unfair burden upon them. Pointer testified that, from the beginning, he inaugurated and maintained the statistical 14 Although counsel argued , and attempted to prove, that it was not until shortly before May 7, 1973, that he was retained to advise Respondent, I find that he was, throughout the contract year, Respondent's advisor in matters relating to the Union and this collective-bargaining contract. 15 Although it has been found that Duffy's threat to Surface violated Sec. 8(a)(I) of the Act, it did not represent the type of pervasive interference that survey of the relationship between the number of union members and the total number of employees in the unit and Duffy testified that Pointer persuaded him of the validity of this view of the problem. Accordingly, it is not improper to hold Duffy and Respondent to the results of the type of investigation they adopted. Moreover Respon- dent had the assistance of specialized labor counsel throughout the period 14 prior to concluding that it would not bargain with the union. From all of the foregoing evidence, I find that Respon- dent did not have, on the basis of objective considerations, a good-faith doubt concerning the Union's status as collective-bargaining representative of the employees in the unit and that its refusal to bargain constitutes a violation of Section 8(a)(5) and (1) of the Act.15 5. The effect of the unfair labor practices upon commerce The activities of Respondent, set forth in findings of fact 2 and 4, occurring in connection with its operations described in finding of fact 1, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 6. The remedy Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take affirmative action designed to effectu- ate the purposes of the Act. Having found that Respondent, by threatening employee Surface with discharge unless he withdrew from the Union, interfered with, restrained, and coerced employees in their exercise of rights guaranteed by Section 7 of the Act, I shall recommend that it cease and desist from a repetition of that and similar activities. Having found that Respondent, by refusing to recognize and bargain with the Union as the collective-bargaining representative of the nurses aides, orderlies, maids, kitchen help, maintenance employees, receptionist, and laundresses employed by it, committed an unfair labor practice, I shall recommend that it recognize and bargain with the Union as the representative of those employees and embody, in a written contract, any agreement reached with the union. Upon the foregoing findings of fact and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At the time of the activities set forth in the Decision, is cited in some cases as major support for a finding of lack of good-faith doubt. The finding herein is on the basis of the actual support for the Union evidenced by the statistical method used by Respondent but with the results which, I find, that method would have disclosed to Respondent had it applied the correct standard to the statistics. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thomas E. Duffy was an officer and supervisor of Respondent within the meaning of Section 2(11) of the Act and acted as its agent. 4. By threatening Robert Surface with discharge unless he withdrew or resigned from the Union, Respondent interfered with, restrained, and coerced employees in their exercise of rights guaranteed by the Act and committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 5. All full-time and regular part-time employees em- ployed at the Respondent's Washington Manor Nursing Center (South) located at 7300 McEwen Road, Centerville, Ohio, including nurses aides, orderlies, maids, kitchen help, maintenance employees, receptionist, and laundresses, but excluding all licensed practical nurses, co-op students, the beautician, the dietary consultant, registered nurses, doctors, and all other professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. Since October 20, 1971, and down to date, the Union has been the exclusive collective-bargaining representative of Respondent's employees in the unit described in Conclusion of Law 4, above. 7. By failing and refusing, since May 7, 1973, to bargain with the Union as the collective-bargaining representative of the employees in the unit described in Conclusion of Law 4, above, Respondent has committed an unfair labor practice within the meaning of Section 8(a)(5) of the Act. 8. By the conduct described in Conclusion of Law 7, Respondent has interfered with, coerced, and restrained employees in the exercise of rights guaranteed in the Act and has committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 9. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, on the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ville, Ohio, including nurses aides, orderlies, maids, kitchen help, maintenance employees , receptionist, and laundresses, but excluding all licensed practical nurses, co-op students, the beautician, the dietary consultant, registered nurses, doctors, and all other professional employees, guards, and supervisors as defined in the Act. (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their right to self-organization, or to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities, except insofar as membership in a labor organization may be required pursuant to a collective- bargaining contract not inconsistent with Section 8(a)(3) of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, meet and bargain with National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and, Department Store Union, AFL-CIO, as the exclusive representative of all employees in the unit described in paragraph 1(b), above, and, if any understanding is reached, embody it in a signed agreement. (b) Post at its nursing home at 7300 McEwen Road, Centerville, Ohio, copies of the attached notice marked "Appendix." 17 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by/it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by it 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 the Respondent has taken to comply herewith. The allegations of the complaint, insofar as not found by the Decision to be violative of the Act, are hereby dismissed. ORDER 16 Respondent, Washington Manor, Inc., doing business as Washington Manor Nursing Center (South), Centerville, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening any employee with discharge unless he or she resigns or withdraws from National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL- CIO, or any other labor organization. (b) Refusing to bargain with National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, as the collective-bargaining representative of employees in the unit described as follows: All full-time and regular part-time employees employed at the Respondent's Washington Manor Nursing Center (South) located at 7300 McEwen Road, Center- 16 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, 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. 17 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 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 The trial held at Moraine, Ohio, on September 18, 19, and 20, 1973, at which all parties were afforded an opportunity to present evidence, has resulted in a Decision that WASHINGTON MANOR NURSING CENTER (SOUTH) 323 National Union of Hospital and Nursing Home Employ- ees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO, is the collective-bargaining representa- tive of: All full-time and regular part-time employees employed at the Washington Manor Nursing Center (South) located at 7300 McEwen Road, Centerville, Ohio, including nurses aides, orderlies, maids, kitchen help, maintenance employees , receptionist, and laundresses, but excluding all licensed practical nurses, co-op students, the beautician, the dietary consultant, regis- tered nurses, doctors, and all other professional employees, guards, and supervisors as defined in the Act; that we have been, and are, required by the National Labor Relations Act to bargain with it for those employees; and that, when we refused to bargain with it, we had no good reason to doubt its status as such representative. The Decision also found that we had threatened Robert Surface with discharge unless he withdrew or resigned from the said union. In accordance with that Decision, and to assure our employees that we will not interfere with their rights under the Act, we hereby state that: WE WILL NOT threaten any employee with discharge unless he or she withdraws or resigns from the above- named Union, or any other union; and WE WILL, upon request, bargain with the said labor organization about the wages, hours, and working conditions of all employees represented by the said labor organization and, if any agreement is reached, we will embody it in a written contract. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, or to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities, except insofar as membership in a labor organization may be required pursuant to a collective-bargaining contract not incon- sistent with Section 8(a)(3) of the Act. Dated By WASHINGTON MANOR, INC., DOING BUSINESS AS WASHINGTON MANOR NURSING CENTER (SOUTH) (Employer) (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, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.