Washington Manor Nursing Center

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Washington Manor, Inc., doing business as Washington Manor Nursing Center (North) and National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Wholesale and Department Store Union, AFL-CIO. Case 9-CA-7856 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 (North), Dayton, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I 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-7857 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 the Judge 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 Civil Procedure, Rule 42(b); Section 10(b) of the Act; and Section 102.35, 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 Section 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 Section 10(b) period, and thus conflicts with the 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)(8) 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 accord- ance with that order and with stipulations at the trial. This Decision deals with the installation at 3109 Campus Drive, in Dayton, called Washington Manor Nursing Center, North. With respect to this installation, the complaint, as amended at the trial, alleges that, after an election held November 13, 1970, National Union of Hospital and Nursing Home Employees, Local 1199H, Retail, Whole- sale and Department Store Union, AFL-CIO (the Union) was, on August 27, 1971, certified as the collective- bargaining representative for all employees employed at the respondent's Washing- ton Manor Nursing Center (North) located at 3109 Campus Drive, Dayton, Ohio, including nurses aides, orderlies, housekeeping employees, maids, cooks, kitch- en employees, dietary employees, the activities thera- pist, the beautician, maintenance employees, and the receptionist, but excluding licensed practical nurses, the dietician, registered nurses, doctors, and other profes- sional 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 17, 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. 24 WASHINGTON MANOR NURSING CENTER (NORTH) 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, although Respondent did not directly interfere with its employees' exercise of self-organizational rights, it cannot be found that Respondent had a good-faith doubt, based on objective considerations, concerning the status of the Union as the collective-bargaining representative of the above-described employees and I find, therefore, that 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 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, North. 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 members of the Union, but that those employees who, 60 3 Typographical errors in the transcript of proceedings have been corrected by order dated December 14, 1973, and, as hereafter noted, 325 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 Les Pointer, 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. 3. The issues The General Counsel contends that Respondent's efforts to persuade its employees to abandon their support of the Union were unlawful; that the Union's status as represent- ative 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 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 turno- ver 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 restraining them in their exercise of those rights precludes a finding that it entertained a good-faith doubt concerning Respondent's revised version of its Exhibit 12 has been substituted for the exhibit received at the trial. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. The complaint alleges that on or about April 17, 1973, Administrator Pointer posted "antiunion literature on the bulletin board . . . requesting employees to refrain from joining the union." In support of this allegation, the General Counsel introduced a notice dated April 17 and posted April 18. This three-page notice is addressed to "all employees" and is divided into three topics labeled "Union matters," "State of Business," and "The Future," each having several paragraphs. Under "Union matters," the notice describes the contract and states that it will expire May 15; that the contract does not require union membership; that all employees, whether members of the Union or not, receive the same pay, benefits, and union representation; that, of the 66 employees in the bargaining unit, only 24 are "currently dues paying employees of the union" and that this is less than half of the employees eligible for union membership; that during the contract term union membership has never reached 50 percent and during most months it has been considerably less and, finally, that upon the expiration of the contract the Company would have a choice of signing a new contract or that it might, after negotiations, fail to reach agreement. The section devoted to "State of Business" makes no reference to the Union but is not optimistic and the section "The Future" states that decisions will be made upon economics and without regard "for the promises of outside influences," stating that they may not be able to keep the promises they make. The General Counsel argues that this notice is antiunion and that, taken as a whole, it constitutes restraint and coercion violative of Section 8(a)(1) of the Act. Taken as a whole, there can be no doubt that it is neither prounion nor strictly neutral; if antiunionism alone were the test, such finding would be justified. The applicable test, however, is not whether the notice is antiunion, but whether it constitutes restraint and coercion violative of the Act. During the course of the trial, Respondent made a motion to dismiss this allegation of the complaint for lack of evidence. The General Counsel argued that the notice was an attempt to induce the employees to abandon their support for the Union by misstating the number of employees in the unit and stating that the Union did not have majority support. Decision on the motion was reserved and the General Counsel directed to brief the point. The General Counsel's brief merely sets forth the 4 Darlington Manufacturing Company v. N.L.R.B., 397 F.2d 760 (C.A. 4, 1968), and Fairmont Foods Company v. N.LR.B., 407 F.2d 828 (C.A. 4, 1969). The Board decision in the Fairmont case, sub nom. U-Tote M of Oklahoma, Inc., 172 NLRB 228, refers to an employer's statement that the employees did not need a union against a background of flagrantly coercive statements and activity. 5 Another notice, dated May 9, 1973, was also received in evidence, although there is no allegation in the complaint for which it could constitute proof. This notice, dated after Respondent had refused to bargain with the Union, informs the employees that Respondent, doubting that the Union facts; his argument-is general and the authorities cited in its support4 are also couched in very general terms. Examination of this notice shows that it is largely factual in nature and the record does not show that any statement is false. The statement on April 17 that there were 66 employees in the bargaining unit is supported by the table, set forth below, showing this same number in it as of April 1; the statement in the notice that only 24 of these employees "are currently dues paying members" is disputed, but only to a minor extent, by the information in the same table that, as of April 1, there were 26 employees having checkoff authorizations on file. The notice shows Respondent's distaste for the Union, but its tone barely rises to animosity and it cannot be said that it exceeds the limits of views, argument, or opinion protected by Section 8(c) of the Act and does not, in my opinion, constitute interference, restraint, or coercion violative of Section 8(a)(1) of the Act.5 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. Pointer 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 reported its receipt to Thomas E. Duffy, a vice president of Washington Manor, Inc., and they had a number of conversations over the following weeks concerning the apparent strength of the Union as reflected by the dues-deduction authorizations on file. On April 6, Pointer and Duffy met with Paul Moody, president of Washington Manor, Inc. Pointer had with him a graph showing the Union's "deduction strength" compared with the "total membership eligibility." It showed, according to Pointer, 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 intervals6 and, on May 4, Pointer gave Duffy his latest figures on the number of employees in the unit and the number of union members. 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." On May 7, when Pointer received three additional dues-deduction authorizations, he report- ed their receipt to Duffy, revised his statistical analysis accordingly, and reviewed his recommendation that Respondent refuse to bargain with the Union. His recommendation was approved and the Union was notified, on May 8, that Respondent had taken the position represents a majority of the unit employees, does not plan to sign an agreement with it . The issue of whether this notice was also violative of Sec. 8(a)(1), assuming it to have been fully litigated, is closely tied to the principal issue in this case, i.e., whether Respondent had objective support for its claimed good-faith doubt concerning the Union's representative status, and its independent resolution appears to be unnecessary. 6 Duffy, the administrator of Washington Manor Nursing Home (South), was Pointer's superior and they conferred frequently by telephone on many matters. WASHINGTON MANOR NURSING CENTER (NORTH) 327 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. Although Pointer testified that his only knowledge of union membership came from the dues-deduction authori- zations on file with his office, he testified that he also based his recommendation on several additional factors: the result of the original election which was "very close"; the amount of turnover between the election and the execution of the collective-bargaining contract; his continuous statistical record of dues-checkoff authorizations as com- pared with employees in the bargaining unit during the entire period of the contract; and the Union's effort, during the preceeding several months, to sign up additional employees. Respondent now contends that, in addition to the foregoing factors, reliance for its refusal to bargain may also be placed upon the fact that there were, at the time, indications that the Union was not functioning7 and reports that the Union had admitted that it did not represent a majority of the employees. Because of their relative simplicity and their dependence upon a few facts, these two additional contentions are discussed first. (2) The Union's inactivity This claim, that the Union's lack of activity prior to the expiration of the contract could justify a good-faith doubt concerning its representative status, was advanced by Respondent's counsel in the course of his cross-examina- tion of witnesses presented by the General Counsel. 'Mere is authority for the contention, if supported by evidence, and the record contains substantial testimony on the subject that was adduced before Pointer testified that one of his reasons for doubting the Union's majority status was its energetic activity in seeking authorizations from the employees. Despite this conflict, Respondent's counsel still argues that, because there were no written grievances, and few oral ones, never a full complement of delegates, and only three meetings "of substance" during the period, Respondent could, on this basis, justifiably have a good- faith doubt of the Union's status. Weller testified that there were only a few grievances and that he handled all of them orally with Pointer; that there was always at least one delegate; that he posted notices of at least 4 meetings; and that he recalled holding meetings in both April and May attended by up to 15 employees. The May meeting is established by the motel record and by the testimony of Ada Pate, a witness called by Respondent, who testified that she attended it. Weller also testified that during April and May, in addition to the formal meetings, he met employees on the street outside the nursing home. I find that this evidence of the Union's activity, considered with Pointer's failure to include this element as one of those contributing to his recommendation, requires that I reject counsel's argument that the Union's inactivity justified a good-faith doubt concerning the Union's representative status. (3) Union admission of lack of majority The argument is based entirely upon the testimony of Ada Pate, who testified that Weller, at the final union meeting in May at the Dayton Inn, asked those present to obtain additional authorization cards because the Union did not represent a majority. Weller testified that he did not recall making this statement that the Union did not represent a majority but conceded that he might have done so. It is unnecessary to decide whether Weller did make this statement because Ms. Pate testified that, in her subsequent discussion with Pointer about the meeting, she did not report any such statement to Pointer and, therefore, Respondent could not have considered this !statement in forming its doubt^of the Union's representa- tive status. Moreover, Respon ent's brief fixes this meet- ing, on the basis of the motel record, as having occurred on May 10 and Ms. Pate testified that she talked with Pointer the following day. Pointer testified, however, that it was on May 7 that he recommended that Respondent refuse to bargain with the Union and that it was on the same day that his recommendation was accepted and the decision made. Finally, this decision was communicated to the Union by counsel's letter dated May 8. From the foregoing it appears, and I find, that Respondent's decision not to bargain with the Union was not based, in whole or in part, upon a belief that the Union had admitted that it did not represent a majority of the employees in the unit. (4) The basis for Respondent's "good-faith doubt" The factors upon which Pointer testified he relied, in making his recommendation that Respondent refuse to bargain with the Union, all contributed to his conclusion that there was doubt of the Union's status as representative of a majority of the employees in the unit. He testified that the started with the closeness of the result in the original election, then considered the turnover between the election and the signing of the contract, the Union's effort to sign up additional members, and the relationship between the number of dues-deduction authorizations on file and the ,number of employees in the unit. (5) 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 1480,8 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 1 Celanese Corporation ofAmerica , 95 NLRB 664, 671-672. 2 /d 7 While the considerable evidence taken on this point will be discussed, the contention is obviously inconsistent with Pointer's testimony that his recommendation was partly based upon the Union's extraordinary activity. 8 Enfd 427 F.2d 1088 (C.A. 4, 1970), cert denied 398 U.S. 929 (1970). The same standard was recently reaffirmed by the Board in The National Cash Register Company, 201 NLRB 1034. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 considerations4 and it must not have been advanced for the purpose of gaining time in which to undermine the union.5 3 "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 4 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.LR.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 "it has presented sufficient evidence to rebut the presumption and to establish good faith doubt" and that the burden of proof is upon the Union to show that it "has a majority." It also argues that the "evidence clearly establishes that the majority of the employees in the bar- gaining unit . . . were not union members and did not support the union." Despite this latter statement, however, all of Respondent's evidence was directed toward proving that it had a good-faith doubt concerning the Union's status as the representative of a majority of the employees in the unit. There is no evidence in this record 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 .9 (6) The closeness of the election and turnover among employees It is clear that the Union's victory in the election was a close one; at the election held November 13, 1970, there were 27 ballots cast for the Union and 24 against it, and the Union, therefore, was supported by 53 percent 10 of the employees who voted. 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 28 such authoriza- tions on file as compared with 69 employees in the bargaining unit . While these figures show that only 40 percent of the employees were actually union members, it would be superficial to conclude that these 28 members measure the totality of the Union's support. From this figure, however, Respondent argues that the turnover of it Compare GA F Corporation, 195 NLRB 169, where it appeared that the employer had been given a copy of a decertification bearing the names of a majority of the unit employees. 10 The precise figure is 52 94 percent. All percentages hereafter, unless otherwise noted, are rounded to the nearest two-digit number 11 Enforcement denied 359 F.2d 799 (C.A. 7, 1966). 12 Printers Service, Inc, 175 NLRB 809, 812, enfd. 434 F.2d 1049 (C A. 6, 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, 1484-85,11 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. 7 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, affd. 319 F.2d 561 (C A. 3). and it has since reiterated that position. 12 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.LR.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 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,13 and that the 40-percent member- ship on that date connotes the support of the same 1970); Massey-Ferguson, Inc., 184 NLRB 640, enfd. 78 LRRM 2289 (C A 7, 1971); The National Cash Register Company, 201 NLRB 1034. 13 While the percentage of employees who had filed checkoff authoriza- tions on June 12 is less than a majority of all the employees in the unit, the Union's victory in the election, attained by a majority of the votes cast, was ,also a manifestation of action by less than a majority of all the employees in the unit This point is further discussed hereafter. WASHINGTON MANOR NURSING CENTER (NORTH) 329 percentage of the employees, i.e., 53 percent, as that which manifested its support of the Union in the election. (7) The Union's effort to sign up additional members Reference has been made to the inconsistency between Respondent's argument that the Union had lapsed into inactivity and Pointer's testimony that the Union's activity in seeking new members was one of the considerations which justified his doubt that it represented a majority of the employees in the unit. Both Jones and Weller testified that they made continuous efforts to sign up additional members and that they regarded such efforts as necessary to protect their majority representation in view of employ- ee turnover. Pointer's testimony on this subject, however, was closely related to his continuing statistical survey of the relationship between the number of employees in the unit and the number of checkoff authorizations on file. I find that the Union's activity was a normal one and that it cannot be regarded as an objective consideration that could justifiably contribute to a good-faith doubt of the Union's representative status. (8) 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 and the number of dues-checkoff authorizations on file and that it was principally on these figures that he relied in making his recommendation that the Respondent refuse to bargain with the Union for a new contract. He also testified that these figures, in revised form, were supplied to Respon- dent's counsel for use in the trial of this case. During the trial there were received in evidence, at the request 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 argu- ment 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 authoriza- tions. The other parties have had ample opportunity to examine the basic data supporting these figures and have interposed no objection to them.14 The Union conceded 14 At the close of the trial there was discussion concerning the accuracy of the figures on Resp Exh 12, 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 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 teal 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 12 as revised) accurately shows the number of union members among Respondent's employees in the unit on the dates set forth therein.15 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 31 and 47. 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 bargain- ing do not become or remain members thereof. Accordingly, 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 Untied 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 remarkable similarity 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 i5 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 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 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of employees in the unit and ignore the fact that a substantial number of eligible voters failed to vote. It could not, 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). 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 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. However, a practicable basis for estimating union support can 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 40-percent membership on June 12 may properly be regarded as the equivalent of the 53 percent union support shown in the election. To determine the extent of union support, as contrasted with union membership, Respon- dent should have extended its schedule to include an additional column, applying this 53 to 40 ratio to each of the figures showing the percentage of union membership. These two columns would have given Respondent the following information: % of Est . % Empl. on of Union Date Checkoff Support 1972 6/12 40 53.00 7/1 45 59.62 8/1 42 55.65 9/1 44 58.30 10/1 43 56.97 11/1 36 47.70 12/1 33 43.72 1973 1/1 31 41.07 2/1 35 46.37 3/1 47 62.27 4/1 39 51.67 5/1 38 50.35 5/15 38 50.35 From these figures it appears that, on or about March 5, when Pointer 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 62.27 percent of the employees in the unit; that after April 6 when, he testified, he "up-dated" his figures, they would have shown that the Union was still supported by 51.67 percent and thereafter, on May 1 and 15, that it was still supported by 50.35 percent. These figures, therefore, would have shown him that the percentage of membership, alone, would not constitute the "objective considerations" upon which a good-faith doubt may be founded. Requiring Pointer 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 survey of the relationship between the number of union members and the total number of employees in the unit and it is not improper to hold him to the results of his own investigation. Moreover Respondent had the assistance of specialized labor counsel throughout the period 16 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, WASHINGTON MANOR NURSING CENTER (NORTH) 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. 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 an unfair labor practice, 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 refusing to recognize and bargain with the Union as the collective-bargaining representative of nurses aides, orderlies, housekeeping employees, maids, cooks, kitchen employees, dietary employees, the activities therapist, the beautician, mainte- nance employees, and the receptionist 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, Les Pointer and Thomas E. Duffy were officers and supervisors of Respondent within the meaning of Section 2(11) of the Act and acted as its agents. 4. All employees employed at the Respondent's Wash- ington Manor Nursing Center (North) located at 3109 Campus Drive, Dayton, Ohio, including nurses aides, orderlies, housekeeping employees, maids, cooks, kitchen employees, dietary employees, the-activities therapist, the beautician, maintenance employees, and the receptionist, but excluding licensed practical nurses, the dietician, registered nurses, doctors, and other professional employ- ees, 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. 5. Since November 13, 1970, and down to date, the 16 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 17 In the event no exceptions are filed as provided by Sec 102 46 of the 331 Union has been the exclusive collective-bargaining repre^ sentative of Respondent's employees in the unit described in Conclusion of Law 4, above. 6. 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. 7. By the conduct described in Conclusion of Law 6,1 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. 8. 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: ORDER 17 Respondent, Washington Manor, Inc., doing business as Washington Manor Nursing Center (North), Dayton, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) 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 employees employed at the respondent's Washing- ton Manor Nursing Center (North) located at 3109 Campus Drive, Dayton, Ohio, including nurses aides, orderlies, housekeeping employees, maids, cooks, kitch- en employees, dietary employees, the activities thera- pist, the beautician, maintenance employees, and the receptionist, but excluding licensed practical nurses, the dietician, registered nurses, doctors, and other profes- sional employees, guards and supervisors as defined in the Act. (b) 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, 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 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail, Wholesale and Department StorelUnion , AFL-CIO, as the exclusive representative of all employees in the unit described in paragraph 1(a), above, and, if any understanding is reached, embody it in a signed agreement.; (b) Post at its nursing home at 3109 Campus Drive, Dayton, Ohio, copies of the attached notice marked "Appendix." 18 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 6q 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. is 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 Orden of the National Labor Relations Board" shall read "Posted Pursuant to a' Judgment of the United States Court of Appeals Enforcing an Order of thel National Labor Relations Board." APPENDIX excluding licensed practical nurses, the dietician, registered nurses, doctors, and 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. 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, 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. 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 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 employees employed at the Washington Manor Nursing Center (North) located at 3109 Campus Drive, Dayton, Ohio, including nurses aides, orderlies, house- keeping employees, maids, cooks, kitchen employees,, dietary employees, the activities therapist, the beauti- cian, maintenance employees, and the receptionist, but, WASHINGTON MANOR, INC., DOING BUSINESS AS WASHINGTON MANOR NURSING CENTER (NORTH) (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.