Raymond Convalescent Hospital, Inc.

494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raymond Convalescent Hospital, Inc. and Service & Hospital Employees Union, Local 399, SEIU, AFL-CIO. Case 31-CA-4152 February 5, 1975 DECISION AND ORDER By ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 2, 1974, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respon- dent filed an answer thereto. 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 considered the record and the attached Decision in light of the exceptions, the brief, and the answer and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. Issues The primary issues are: 1. Whether Respondent through its agent, Mildred V. Ames, violated Section 8(a)(1) of the Act by: interrogating an employee concerning his union sentiments ; telling employees that Respondent could offer better benefits than the Union could; telling employees that they could come into her office to inform her if they did not want the Union; and telling employees that key employees would quit if the Union were designated as collective-bargaining representative. 2. Whether Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union where Respondent was a successor to an employer having an outstanding contract with the Union and where Respondent did not have a good-faith doubt that the Union continued to represent the employees. All parties were given full opportunity to participate, to introduce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire records of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 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 complaint be, and it hereby is, dismissed. The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C A. 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was tried at Los Angeles, California, on March 26, 1974. The charge was filed on December 17, 1973, by Service & Hospital Employees Union, Local 399, SEIU, AFL-CIO, herein called the Union. The complaint issued on February 21, 1974, and alleges that Raymond Convales- cent Hospital, Inc., herein called Respondent, violated Section 8(a)(1) and (5) of the National Labor Relations Act as amended. I Errors in the transcript have been noted and corrected. 2 The allegations in the complaint relating to commerce and labor organization were not responded to in the answer filed by Respondent. 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation with its principal place of business in Pasadena, California, where it operates a nursing home. Respondent commenced business on or about November 19, 1973, and by projection for the 12- month period ending November 18, 1974, it will realize a gross volume of business in excess of $100,000. During this same period, by projection, it will receive in excess of $200,000 from the Medi-Cal Health Program. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Through November 18, 1973, Park Raymond Convales- cent Hospital, herein called Park Raymond, operated the nursing home now run by Respondent (Raymond Conva- lescent Hospital, Inc.). Respondent, as owner and lessor of the building housing Park Raymond, foreclosed on the lessee, Park Raymond, took possession, and continued without interruption to operate a proprietary nursing home at the same location . Respondent used the same equip- Pursuant to Sec. 102.20 of the Board's Rules Regulations , Series 8, as amended, all allegations of the complaint not responded to in the answer are deemed admitted 216 NLRB No. 85 RAYMOND CONVALESCENT HOSPITAL, INC. 495 ment, employed many of the same employees and supervisors and produced substantially the same services as Park Raymond previously had done. Park Raymond employed approximately 40 employees and of them 38 were employed by Respondent on November 19, 1973, with no interruption in their jobs. On December 1, 1973, four employees were hired, two of whom had previously worked for Park Raymond. Between December 3 and 7, 1973, four additional employees were hired, none of whom had worked for Park Raymond. Respondent continued to perform services for substantially the same patients as had Park Raymond. For many years Park Raymond had a collective-bargain- ing contract with the Union .3 The last contract, by its terms, is effective from April 17, 1972, through April 16, 1975. Mildred V. Ames was administrator of the nursing home from November 19, 1973, when Respondent took over the nursing home, until February 11, 1974, when she left Respondent's employ.4 From September 1970 to October 3, 1973, Ames had been administrator for Park Raymond. During the approximately 6 weeks between October 3 and the commencement of her employment with Respondent on November 19, 1973, Ames had worked for another employer. During that period Myra Burman was adminis- trator for Park Raymond. Burman was told by her employer at Park Raymond to contact Ames and tell her what had transpired at the facility in the time that Burman had been administrator. On November 14 or 15, 1973, Ames and Burman met and discussed some possible employee changes. Burman mentioned that the employees were strong union people. Ames replied "I will have nothing to do with the Union" or "I will kick the Union out as soon as I get back to Park Raymond." On December 1, 1973, Respondent received a letter dated November 29 in which the Union stated that it had been informed that Respondent would give effect to the contract the Union had with Respondent's predecessor.5 The letter enclosed copies of the collective-bargaining agreement for Respondent to sign. Respondent neither signed the contract nor wrote a response to the letter .6 Instead, on December 7, 1973, Respondent filed with the Board a Petition for an Election in Case 31-RM-361. Respondent has not recognized or bargained with the Union, claiming that it has no legal obligation to do so.7 On December 10, 1973, Union Business Agent Booker Graham came to the nursing home and was told by Ames that as far as she was concerned the place was not union. By letter dated February 20, 1974, the Regional Director 3 The bargaining unit was: All dietary employees, maids, ,janitors, storekeepers, maintenance employees, grounds keepers , orderlies, nurses aides, licensed vocational nurses, and laboratory helpers employed at the nursing home but excluding all professional employees, including physicians and regis- tered nurses, office clerical employees , guards, watchmen and supervi- sors as defined in the Act. The complaint alleges, the answer by its failure to respond admits, and I find that the unit is appropriate for the purposes of collective bargaining within the meaning of Sec . 9(b) of the Act. 4 It is admitted and I find that Ames was a supervisor within the meaning of the Act. S The letter in part read. "... I am also informed that you will give full force and effect to the collective-bargaining agreement entered into by Service and Hospital Employees Union and the predecessor Employer, for Region 31 of the Board notified Respondent' that complaint was going to issue in the instant case and that Respondent's Petition for an Election was therefore dismissed. B. The Alleged Violations of Section 8(a)(1) of the Act 1. The alleged interrogation of Brown Theodore Brown, Jr., is an employee of Respondent in the housekeeping department. During the first week of December 1973, Brown had a conversation with Adminis- trator Mildred V. Ames in Ames' office. No one else was present at the time. According to Brown Ames asked him what his opinion was concerning the Union; Brown replied there were advantages and disadvantages but that he felt he didn't want to belong to the Union; Ames said that Leipzig (the owner of Respondent) no longer had a contract with the Union; and Ames also said that she wanted to get everyone's opinion concerning how they felt about the Union. Ames' testimony concerning this conversation was substantially different. According to Ames, Brown spoke to her in her office when he was doing maintenance work there. Ames averred that Brown asked her about the Union; she replied that they didn't have a union contract; Brown asked, "Does that mean we don't have to belong to the Union?"; she said, "Mr. Leipzig does not have a union contract"; and Brown said he didn't want to belong to the Union. Ames, in her testimony, denied that she asked Brown his opinion about the Union and further denied that she said she was going to ask other employees their opinions. I credit Ames' version of the conversation. Ames was a direct and convincing witness.8 There is much testimony in the record concerning information volunteered by employ- ees to Ames concerning the Union, but other than Brown's there is no testimony that Ames interrogated employees concerning the Union .9 Brown was not a convincing witness. At one point in his testimony he averred that he did not recall Ames saying that Leipzig had no contract with the Union.10 Later in his testimony, he acknowledged that Ames did mention something about Leipzig not having a contract with the Union. My observation of Ames and Brown as they testified and the content of their testimony leads me to the conclusion that Ames was the more accurate witness of the two, and I therefore credit her denial that she interrogated Brown recognizing the said Union as the bargaining representative for those employees... " 9 Though the complaint alleges an unlawful refusal to bargain since on or about November 29, 1973, General Counsel in his brief contends that the refusal to bargain occurred on December 1, 1973, which is the date Respondent received the Union's demand. 7 There is no contention nor evidence that Respondent unlawfully changed any wages, hours, or conditions of employment. 8 It is noted that at the time of her testimony she was no longer employed by Respondent. 9 As found below Ames statement to employees at a meeting on December 7 was not an interrogation io That statement was made by Ames to a number of employees when they asked her about the Union. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning his union sympathies . I shall therefore recom- mend that paragraph 12(a) of the complaint , which appears to allege that interrogation as a violation of the Act, be dismissed. 2. The December 7, 1973, meeting On December 7, 1973, Ames called a meeting of Respondent's employees. About 20 or 25 employees attended the meeting at 2:45 p.m. that day. There is a substantial conflict in testimony as to what was said. Ames testified as follows : Ames began the meeting by reading a statement that had been prepared by Harry Stang, Respondent's attorney. She read it word for word as follows: I want to take a few minutes of your time to discuss a subject which is of concern to all of us . I hope you will pardon me for reading this, but I do not want to be misquoted later on. Last Friday we received a letter from Local 399. The letter demanded that we sign a new contract with Local 399. Obviously, we will continue the wages and benefits which you now have . However, we are quite concerned about the clause in the contract which would require each and every one of you to join the Union and pay dues as a condition of keeping your jobs here. [At this point in her presentation, Ames read art. 2, pars. a, b, c, and d of the contract Park Raymond had with the Union. Those pars. relate to union security.] In light of the fact that several of our employees have told me that they don't wish to be members of the union, we are worried about the effect this clause would have on our employees. It is my intention to review the situation with Mr. Leipzig before we make any decisions . However, I did want to let you know about the situation because it is so important to you. If you have any questions, I will try to answer them. Ames then asked whether there were any questions. Employee Biggs told the group that he did not want the Union and he didn't think he received enough for his dues. Biggs added that Park Raymond had been fair in giving him merit increases and he preferred to go along with that system rather than joining the Union . Licensed Vocational Nurse (LVN) Evelyn Reser then said, "I will just tell you one thing, if we have to fool with that Union, I am quitting." Another employee, Mary Margo said that she did not receive any benefit from the Union and she did not want the Union. Margo then said, "Let's just vote on it now," and a number of people put up their hands. At that point Ames said, "Just wait a minute. We couldn't vote it in or out at this time as I understand it. I don't want you to make a hasty decision, please, think about it and you can let Mr. Leipzig or I know at a later time what you really feel about it." Employee Lee Thompson then asked Ames questions concerning the cost to join, how dues were collected, what benefits there were, and the starting rate under the contract. Ames answered Thompson and told her she was free to read the contract any time . Another employee asked if Leipzig was going to recognize vacation status or time that had been built up with Park Raymond, and Ames replied that she couldn't answer the question then but that any time the employee came to the office they would discuss it. Ames went on to say that she was always willing to discuss any problem with the people and her door was always open. Another employee asked what the benefits would be if they didn't join the Union. Ames picked up the paper she had read from and said, "Obviously, we will continue the wages and benefits which you have now." Four witnesses in addition to Ames testified concerning what was said at the December 7 meeting . Nurses aides Frankie Wells (who was the shop steward) and Willie Minnifield, as well as supervisor Rose Triplett, testified on behalf of the General Counsel. Orderly William Biggs testified on behalf of Respondent . All five of the witnesses corroborated parts of each other's testimony and disagreed as to other parts. The pivotal differences are.keyed to the matters alleged in paragraphs 12(b), (c), and (d) of the complaint. Paragraph 12(b) of the complaint alleges that Ames told the employees that Respondent could offer the employees better ' benefits than the Union could. As noted above, Ames testified that her remark concerning benefits occurred during the time she was reading the speech prepared by her attorney and that she said "Obviously, we will continue the wages and benefits which you now have." Biggs corroborated her testimony in this regard . Triplett testified that Ames did not say that Respondent could give the people better benefits than the Union. Minnifield in her initial testimony averred that Ames said that Leipzig would give them more benefits . However, on cross-exami- nation Minnifield acknowledged that she could not remember if Ames said they would continue the benefits that they then had . Wells testified that Ames said that Raymond Convalescent Hospital could give them better benefits than the Union." Wells' testimony in this regard is inconsistent with the witnesses of both Respondent and the General Counsel. I do not believe that Wells was accurate in her recollection of what happened at the meeting and I do not credit her assertion that Ames promised better benefits than the Union. I shall, therefore, recommend that paragraph 12(b) of the complaint be dismissed. Paragraph 12(c) of the complaint alleges that Ames told the employees that they could come into her office to inform her if they did not want the Union . As is set forth above, Ames acknowledged that she told the employees that they could let Leipzig or Ames know at a later time what they felt about it. However , she put the remark in the context of employee Margo's suggestion that the employ- ees vote on the Union and the employees started to put up their hands. She averred that she said "Just wait a minute. We couldn't vote it in or out at this time as I understand it. I don't want you to make a hasty decision, please, think about it and you can let Mr. Leipzig or I know at a later time what you really feel about it." Biggs corroborated I I Before so testifying, Wells was asked whether she recalled Ames' us that she couldn't tell us how to vote." Her response with regard to the saying anything else about the Union and Ames replied , "No. Shejust told benefits was then elicited by use of a leading question. RAYMOND CONVALESCENT HOSPITAL, INC. 497 Ames in substantial part by testifying that, after employee Margo spoke, Ames said that she didn't want a hasty decision and the employees could think it over in the next day or so and come to her office or let her know whether they wanted the Union. Minnifield testified that Ames said that they could each come to her office to talk to her about the Union and whether they wanted it. Triplett testified that no one talked about a vote or a hasty decision. She also testified in substance that Ames told the employees that it was up to them whether they wanted to vote for or against the Union and that they could come to her office if they wanted to pursue the matter any further. Wells testified that Ames said that she couldn 't tell them how to vote but, if they wanted to, they could come to her office one at a time because her door was open to discuss if they wanted the Union or not. I believe that Ames was both a truthful and an accurate witness. Her testimony concern- ing what she said at the meeting was more detailed than that of the other witnesses and was fully credible . I do not believe that the recollection of the other witnesses was as accurate. In sum, I find that Ames was attempting to get the employees to refrain from conducting a poll of their union sentiment that might be considered unlawful, and was not soliciting them to come to her office and renounce the Union. In the context in which the statements were made, I find that Ames' remark did not violate the Act, I shall therefore recommend that paragraph 12(c) of the complaint be dismissed. Paragraph 12(d) of the complaint alleges that Ames told the employees that licensed vocational nurses would quit if the Union were designated as collective-bargaining repre- sentative. Ames testified that she never said anything about LVN's quitting if the Union came in and that LVN Reser was the one who said that she (Reser) would quit if they had to "fool with that Union." Biggs in his testimony corroborated Ames' testimony to the effect that Ames did not say anything with respect to LVN's quitting. Minni- field testified as to the details of what was said at the meeting but she did not give any testimony concerning whether or not Ames made a statement concerning LVN's. Triplett testified that she did not hear anyone make a statement that the LVN's would quit if the Union got in. In contrast to all the other witnesses , Wells testified that Ames told the employees that she had received a letter indicating the LVN's would quit if the Union got in. Wells also averred that LVN Reser did not threaten to quit if the Union came in. Ames' testimony is fully or partially corroborated by the testimony of the other witnesses while the testimony of Wells stands out in isolation. As indicated above, I believe that Ames was a more accurate witness than Wells and I credit Ames where her testimony conflicts with Wells'. I shall therefore recommend that paragraph 12(d) of the complaint be dismissed. C. The Refusal To Bargain 1. The employee comments to Ames concerning union representation Myra Burman, the administrator for Park Raymond from October 22, 1973, through November 17, 1973, credibly testified that during the time she was administra- tor there were no problems concerning the Union. However, Mildred Ames, the administrator who preceded Burman as Administrator for Park Raymond and who took over when Respondent began to operate the nursing home on November 19, 1973, credibly testified that from the first day she began working for Respondent employees told her that they did not want to be represented by the Union. Respondent commenced its operations of the nursing home on November 19 with 38 employees, all of whom had immediately before been employed by Park Raymond in the bargaining unit represented by the Union. In the first 2 days of Respondent's operation, some 10 employees approached Ames and told her that they did not want the Union. Within the first 2 weeks of Respondent's operation (which began November 19, 1973), at least 23 of those 38 employees told Ames that they did not want the Union.12 Respondent's records show that as of December 1, 1973, there were five additional employees. Two of the five 13 had previously worked for Park Raymond while the others had not. Of these five, one,14 shortly after her hire, told Ames that she did not want the Union. Respondent's records also show that there were four more employees as of December 7, 1973. None of these had previously worked for Park Raymond. One,15 shortly after her hire, told Ames that she did not want the Union. Summing up the above figures, it appears that of the 38 employees who started off with Respondent on November 19, 1973, at least 23, during the first 2 weeks of their employment, told Ames that they did not want the Union. In some circumstances it is proper to assume that new employees who are hired want union representation in the same proportion as the other employees.16 However, in the instant case, even if it is assumed that all of the new 12 Biggs testified that the first time he told Ames that he did not want the Union was at the December 7 meeting. Ames averred that Biggs told her this on two or three occasions shortly after November 19, 1 credit the accuracy of Ames' recollection over that of Biggs. The finding with regard to the other 22 are based on the credible and uncontradicted testimony of Ames. Those employees were 1. Brakens, T. Brown, T. Calantas, M Clark, R. Cobos, J. Cooper, E. Frazier, E Harrison, B. Haupt, T. Jeffery, B. Johnson, S. Jones, M. Margo, M. McIntire, V. Miller, J. Norzagoray, D. Oliver, E. Reser, F. Smith , L. Thompson, M. Toler, and M . Welch. Three employees, as to whom there was some question , have not been included in the 23. Those are B. Jones, C. Price, and O. Rasberry. B. Jones is a part-time LVN charge nurse. She testified that she was not interested in the Union but that she did not tell Ames anything about the Union. Ames testified that Jones was one of the employees who told her she didn 't want the Union Both Jones and Ames were fully credible witnesses but I believe that it is more likely that Jones' recollection would have been more accurate as the event would have been easy for her to remember and Ames could have been mistaken in going over a long list of names. I therefore credit Jones and have not counted her among the employees who told Ames that they did not •i want the Union. Ames testified that employee C. Price told her that he did not want the Union and then later told her that he hadn't made up his mind. Ames also testified that employee O. Rasberry told her indirectly that she didn't want the Union and then retracted that statement. I have therefore not counted either Price or Rasberry among the employees who told Ames that they did not want the Union. 13 D. Lara and M. Curran. 14 M. Curran. Is I Rogers. 16 Cf. Laystrom Manufacturing Co, 151 NLRB 1482 (1965), enforcement denied 359 F.2d 799 (C.A 7, 1966); Emerson Manufacturing, inc., 200 NLRB 148 (1972). 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees wanted the Umon except those who specifically told Ames they did not, it appears that 25 employees out of a total complement of 47 told Respondent 17 that they did not want the Union. 2. The checkoffs and union memberships Ames credibly testified that she knew that only a small portion of the employees were on checkoff for the Union. Booker Graham, a business representative for the Union, testified concerning union records. He acknowledged that in the division of the Union in question it was the practice to have all union members on checkoff. Though Graham's analysis of the union records was at best confusing, he did admit that the Union only had ] I membership cards for the 38 employees listed on Respondent's records as being employed as of November 19, 1973. He also admitted that the Union had only 18 checkoffs for November. 3. Analysis and conclusions a. The background principles The Board has consistently held that where an employ- ing industry remains the same, a predecessor's obligation to deal with the Union that represents its employees devolves on a successor. Maintenance, Incorporated, 148 NLRB 1299, 1301 (1964); N.L.R.B. v. Burns International Detective Agency, Inc., 406 U.S. 272 (1972). This principle applies where the Union's majority status with regard to the predecessor is established by the presumption raised either by a certification or by the existence by an unexpired collective-bargaining agreement. Roosevelt Walker d/¢/a B & W Maintenance Service, 203 NLRB 657 (1973); Barring- ton Plaza and Tragniew, Inc., 185 NLRB 962 (1970), enfd. 470 F.2d 669 (C.A. 9, 1972). The facts set forth above establish that Respondent is a successor employer to Park Raymond in that it used "substantially the same facilities and work force to produce the same basic products for essentially the same customers in the same geographic area." Ranch-Way, Inc., 203 NLRB 911 (1973).18 As the Board said in Automated Business Systems, 205 NLRB 532 (1973):19 Under established Board precedent, there is a presump- tion that a union, after the expiration of a year from the date of its certification, continued to be the choice of the employees in the unit as their exclusive bargaining representative. Similarly, it is presumed that a union retained its majority status in the unit established by its it It is noted that the date of employment off. Rogers was later than the others. General Counsel in his beef points to the fact that Ames, in an affidavit she gave to the General Counsel, averred that at the time she advised the employees that Respondent had received a request from the Union to sign a contract 13 employees told her they didn't want the Union and a number of others told her that thereafter . General Counsel argues that this indicates that the employees spoke to Ames on December 7 when she addressed them or thereafter and not as claimed by Ames within 2 weeks of November 19. The affidavit's reference to Ames telling the employees about the demand does not necessarily indicate that the remark was made at the formal meeting of December 7 It is likely that the demand was generally discussed shortly after it was received. The affidavit refers to the conversations with employees and then goes on to state that on December 6 collective-bargaining agreement, even after the expira- tion of that agreement. This presumption is normally rebuttable (subject to the Board's "contract-bar" doctrine) by competent evidence that the union no longer commands a majority, and even without such an affirmative showing an employer may withhold further bargaining in reliance upon a reasonably based doubt as to the continuing majority. [Footnotes omitted.] In Barrington Plaza and Tragniew, Inc., supra, the Board held: "The presumption applies not only to a situation where the employer charged with a refusal to bargain is itself a party to the preexisting contract, but also to a successorship situation . . . . The burden of rebutting this presumption rests, of course, on the party who would do so." Ordinarily, an employer may not question an incumbent union's majority status during the life of a contract. That risk, however, does not apply to successors because, under the principles established by the Supreme Court in the Burns case, supra, a successor-employer is not bound by its predecessor's collective-bargaining contract in the absence of an undertaking to that effect. Ranch-Way, Inc., supra. Respondent therefore stands in a similar position to a nonsuccessor employer at the end of a collective-bargain- ing contract. Respondent can rebut the presumption of continued majority either through proof that it predicated its refusal to bargain on a reasonably based doubt as to the continuing majority status of the Union or that the Union in fact no longer represented a majority of the unit employees. Cf. Orion Corp., 210 NLRB 633 (1974). b. The lack of union membership and checkoff As is set forth above, Respondent has established through the testimony of Union Business Agent Booker that as of November 19, 1973, only a minority of its employees were members of or had checkoffs in favor of the Union. Respondent began operations with almost all of Park Raymond's employees, and on November 19, a representative employee complement had been hired. However, the Board has pointed out that majority support is not to be confused with majority union membership. The fact that a majority of employees are not members of a Union and do not pay dues is not equivalent to a lack of union support. Orion Corp., supra. As the Fourth Circuit Court of Appeals held in Terrell Machine Company v. N.L.R.B., 427 F.2d 1088 (1970): ". . . many employees are content neither to join the union nor to give it financial support but to enjoy the benefits of its representation. Nonetheless, the union may enjoy their support, and they (the day before the formal meeting) Ames called Respondent's attorney and told him that many of the employees had informed her that they did not want the Union . In any event, 2 weeks after November 19 was December 3, 1973. General Counsel's argument is that the refusal to bargain occurred on December 1, 1973, when Respondent received the Union's demand Respondent has not proved that a majority of employees told Ames they did not want the Union as of that date. 18 Respondent, in effect, acknowledges its successorship status by stating in its brief: "In a successorship case such as this, 'resolution of the allegation that Respondent refused to bargain collectively with the Union [is] a question of fact requiring a determination whether Respondent entertained a good faith doubt of the Union's majority status.' " [Citations omitted.] 19 See also Canter Bros., Inc., 203 NLRB 774 (1973). RAYMOND CONVALESCENT HOSPITAL, INC. 499 may desire continued representation by it." Therefore, the evidence with regard to membership and checkoff fails to establish that the Union did not continue to represent a majority of the employees. c. The good faith doubt Respondent has introduced substantial evidence with regard to its claim that its refusal to bargain was predicated on a good-faith and reasonably grounded doubt of the Union's continued majority. As the Board held in Terrell Machine Company, 173 NLRB 1480 (1969), enfd. 427 F.2d 1088 (C.A. 4, 1970), there are two prerequisites for sustaining this defense. They are: "that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the Union." (Footnotes omitted.) In Phil-Modes, Inc., 159 NLRB 944, 959 (1966), enfd. 396 F.2d 131 (C.A. 5, 1968), the Board adopted the Adminis- trative Law Judge's finding that: "And ordinarily evidence that employees reported or communicated to supervisors that they, the enployees, wished to withdraw from the Union, absent any contemporaneous unfair labor prac- tices, warrants a finding of good-faith doubt as to majority." (Footnotes omitted.) As is set forth in detail above, some 10 employees notified Respondent within the first day or two of its operation that they no longer wanted the Union to represent them, and within 2 weeks of the commencement of operations a majority of the employees had so informed Respondent. That 2-week period ended December 3, 1973. The Union's demand for recognition was received by Respondent on December 1, and on December 7, 1973, Respondent filed a petition for an election. As is set forth above, Respondent simply refrained from all action with regard to the Union prior to filing the petition for an election. The allegations of independent violations of Section 8(a)(1) of the Act have not been established by a preponderance of the evidence and there is no allegation nor proof that Respondent changed any wages, hours, or working conditions. In determining whether Respondent had a good-faith doubt as to the Union's majority, the remarks that Ames made to Burman (the administrator of Park Raymond from October 3 to November 18, 1973) must be considered. In the conversation which took place about ' November 14 or 15, 1973, which was 4 or 5 days before Respondent commenced operations, Ames referred to her anticipated employment with Respondent and said "I will have nothing to do with the Union," or "I will kick the Union out as soon as I get back to Park Raymond." To some extent, this stated desire to be shed of the union colors Respondent's assertion that it had a good-faith doubt as to the Union's majority. There is no evidence in the record concerning Ames' prior relationship with the Union when she was administrator for Park Raymond or whether Ames 19 As indicated above , Ames credibly testified that the employees told her they did not want the Union during the first 2 weeks of Respondent's operation of the nursing home. The 2-week period ended December 3, 1973. As Respondent has the burden of going forward with the evidence to rebut the presumption of continued majority, its failure to establish its good-faith doubt as of December 1, 1973, leaves the presumption intact as of that date. had any reason to doubt the Union's majority status with regard to Park Raymond. Ames' remarks therefore give cause to view Respondent's defense with some skepticism. However, the remarks in themselves do not conclusively establish a lack of good faith with regard to Respondent's subsequent actions. The fact that Ames wanted to operate nonunion does not establish that at the time of the refusal to bargain with the Union Respondent did not have a good-faith doubt that the Union represented a majority of the employees. As found above, by December 7, 1973, when Respondent filed a petition for an election, a majonty of the employees in the bargaining unit had told Ames they didn't want the Union. Respondent had not engaged in any independent violation of Section 8(a)(1) of the Act which would have indicated that the employees were being coerced into expressing something other than their true desires. I therefore find that as of December 7, 1973, when it filed the petition for an election, Respondent did have a reasonably based good-faith doubt as to the Union's majority status and that doubt was based on objective considerations. I also find, however, that Re- spondent has not proved that as of December 1, 1973, when it received the Union's demand for recognition, that it had such a good-faith doubt.19 Respondent has proved that some of the employees had indicated they did not want the Union by December 1 but has not proved that a majority had done so. The date upon which Respondent's obligation to bargain matured must therefore be consid- ered. A successor employer is something of a hybrid creature. It does not have all the attributes of its predecessor, in whose shoes it partly stands, in that it is not bound by the predecessor's contract and it can raise a question concern- ing its good-faith doubt as to the Union's majority status at a time when the predecessor would have been barred from making such a claim because of an outstanding contract. In addition, a successor cannot withdraw recognition as can a predecessor, because a successor has never granted it in the first place. On the other hand, a successor is very unlike an employer who approaches a bargaining relation- ship for the first time, as the successor is bound by a presumption of continued majority from his predecessors relationship with the Union, In general, categorical analogies cannot always be properly drawn between the duties that a predecessor would have had and those that a successor does in fact have. An employer (where there is no successorship) can withhold further bargaining, after expiration of its con- tract, as of the date that it obtains a reasonably based doubt as to the Union's continuing majority. Automated Business Systems, supra. The date of the withholding of further bargaining or the withdrawal of recognition is decisive in determining whether there had been good faith.20 In the instant case, Respondent had hired a representative employee complement as of the moment it started operations. It had continued the predecessor's 20 In Orion Corporation, supra, the Board referred to: ". . . the well- established principle that if an employer does not establish that it had a reasonable doubt when it ceased bargaining, it can defend against an 8(aX5) allegation only by showing actual loss of majority as of the date of withdrawal of recognition " (Footnote omitted.) 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business with almost all of the predecessor's employees and had done so without interruption. Because it was a successor, Respondent had never bargained with or granted recognition to the Union and therefore did not cease bargaining or withdraw recognition. It did, however, refuse to bargain. It manifested its refusal by the filing of the RM petition on December 7, and by the statement of Ames to Union Business Agent Booker on December 10, that, as far as Ames was concerned, the place was not union. As a general rule, a successor's obligation to bargain with a union matures when the successor has hired a representa- tive employee complement, a majority of whom had been represented by the Union. Valley Nitrogen Producers, Inc., 207 NLRB 208 (1973); N. L R. B. v. Burns, etc, supra at 295. That rule presupposes that a demand for recognition and bargaining has been made by the Union. No union demand is needed in a situation where there is a withdrawal of recognition or a cessation of bargaining by an employer. However, where an employer has not recognized the Union it can be found to have unlawfully refused to bargain only after the Union has demanded bargaining. Cf. Spruce Up Corporation, 209 NLRB 194 (1974). The General Counsel therefore contends in his brief that the duty to bargain arose not on November 19 when Respondent had hired a representative employee comple- ment but on December 1, 1973, when Respondent received the Union's demand. The date that a demand is received is ordinarily used as the refusal to bargain date in situations where an employer responds to the demand by engaging in unfair labor practices that are of such a nature as to prevent the possibility of a fair election . However, that is not the situation in the instant case . Here Respondent did not engage in any activities to undermine the Union. In the 6 days between the receipt of the demand and the filing by Respondent of the petition for an election , Respondent took no action with regard to the Union. Neither did it do anything to -change wages, hours, or conditions of employment. The first action of Respondent that could be construed as a refusal to bargain was the filing of the petition of December 7, 1973. In the circumstances of this case, I see no compelling policy reason to require the legal conclusion that Respondent refused to bargain on the date the demand was received rather than on the date on which the Company responded to the demand. The demand was received in the context of a situation where there was ferment concerning the Union, and a number of the employees, though less than a majority, had told Respond- ent they did not want the Union . Respondent maintained the status quo for 6 days and did not use that time to attempt to undermine the Union or to unreasonably delay a response to the Union's demand. On the sixth day after the demand, and after a majority of the employees had indicated they did not want the Union, Respondent filed the RM petition and thereby indicated that it would not bargain with the Union unless the employees voted in a Board election in favor of the Union. Under these particular circumstances , I do not believe a fording that the Respondent violated Section 8(a)(5) of the Act is warrant- ed. In cases of this nature, two basic policy considerations must be weighed. The first is that the industrial stability that flows from the continuation of a collective-bargaining relationship, whether established through a history of bargaining or a successorship, should not be disturbed or subjected to question except for good cause. The second is that an employer's statutory obligation to bargain only with a majority union as well as the employees' right to affirm or deny their desire to be represented by an incumbent union, are meaningful only where the employees, at appropriate times, can make a definitive statement of their views. In this case such a statement was sought through the Board's election procedure. In the circumstances of this case, I believe that a proper balancing of these policies weighs in favor of the election procedure. In reaching this conclusion, I have carefully considered the cases of Ranch- Way Inc., supra Valley Nitrogen Producers, Inc., supra, and Glenn Spooner d/b/a D & F Super Market, 208 NLRB 891 (1974). A serious argument can be made on the basis of those cases that a successor's duty to bargain matures at the time when the demand has been made and a representative employee complement hired, and that evidence of good-faith doubt after those dates cannot be used to exonerate an employer from an 8(a)(5) violation. However, I believe that all three cases are distinguishable on their facts. In Ranch-Way, Inc., the Board found that a successor-employer who had taken over operations from a predecessor on July 1, 1968, violated Section 8(a)(5) of the Act by making certain unilateral changes in working conditions on and after July 1, 1968, and by refusing to bargain with the union on July 15, 1968, when the union notified the company that it expected the contract to remain in effect. In that case, the Board found that it was not until October or November 1968, which was long after the company's refusal to bargain, that the employees indicated that they no longer wished to be represented by the union. On August 5, 1968, that employer had expressed doubt of the Union's majority but gave no reason to support that expression . In those circumstances, the Board found that the employer had violated Section 8(aX5) of the Act. In Valley Nitrogen Producers, Inc., the Board specifically keyed an 8(a)(5) violation to its finding: "that at the time the duty to bargain with the Union matured the Respondent did not have a sufficient basis to doubt the Union's majority status among the unit employees." The Board found that the duty matured on January 26, 1973, when a representative complement of employees had been hired (which was after a demand by the union had been made ). The successor had taken over the operation of the predecessor on January 11, 1973. The Board held that evidence of employee dissatis- faction with the union after January 26, 1973, was vitiated by the company's preexisting unlawful refusal to bargain with the union and therefore was to be accorded no weight whatsoever. However, the underlying facts of that case were that between January 10 and 26, 1973, the company instituted an entirely different schedule of wages, rates of pay and hours, and changed working conditions. On January 9, 1973, the union had demanded bargaining. The company ignored the demand and told the employees to contact the former employer concerning any contract rights. On January 19, the union reiterated its demand on the telephone, and the company answered that it was not RAYMOND CONVALESCENT HOSPITAL, INC. 501 fully staffed but that it had no objection to meeting when staffing was completed . On January 23, the union wrote making a third demand. On February 2, the company responded by saying that it would meet when employment conditions were resolved, but would not recognize the union. On February 7, the employer claimed that the union did not represent a majority. On February 16, the union again renewed its demand and, on February 22, the company agreed to investigate the union's majority status. In both the Ranch- Way, Inc., and Valley Nitrogen cases, the employer engaged in prolonged alld unjustifiable dilatory tactics while changing wages, hours, or working conditions. Both are distinguishable from the instant case where Respondent maintained the status quo for a short time before filing a representation petition , which was based on a good-faith doubt as to majority, and the delay was in the context of substantial employee claims that they did not want the Union to represent them. Glenn Spooner d/b/a D & F Super Market, supra, is also distinguishable on its facts from the instant case. In the Spooner case, the successor began operating on August 14, 1972. The company met the union who represented the predecessor's employees, and on August 17, 1972, the union demanded recognition . The company responded by demanding proof of the majority. The Board found this demand for proof to be a refusal to bargain and also found that, as of the date of that refusal, the employer did not have a good-faith doubt as to the union's majority status. In that context an 8(aX5) violation was found even though 21 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. an RD petition had been filed on September 6, 1972. In the instant case, the only demand for proof of majority by the Employer was made through the filing of an RM petition and at the time of the filing the Employer did have a good- faith doubt as to the Union's majority. No other action of the Respondent took place before the filing of the petition that can be construed as a refusal to bargain. In sum, I find that, based on the particular circumstances set forth above, the General Counsel has not proved by a preponderance of the credible evidence that Respondent refused to bargain in violation of Section 8(a)(5) of the Act. I shall therefore recommend that the complaint be dismissed in its entirety. 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. Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 21 The complaint is dismissed in its entirety. 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.