Fairlawn Care Center

FAIRLAWN CARE CENTER Lutheran Homes and Hospitals, Inc. d/b/a Fairlawn Care Center and Service Employees International Union, Local No. 49, AFL-CIO. Case 36-CA- 2917 December 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 25, 1977, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent's admitted refusal to continue to recog- nize the Union, which had represented its employees for many years, following the relocation of its facility to a nearby site was not violative of Section 8(a)(l) and (5) of the Act as alleged in the complaint. The General Counsel has filed exceptions to this conclu- sion. For the following reasons, we find those exceptions meritorious. The essential facts and circumstances leading up to the establishment of the new facility at Gresham on June 21, 1976,1 are fully and accurately set forth by the Administrative Law Judge and will not be repeated here. Based on these facts, she correctly found that this facility is merely a relocation of Respondent's previous Foster Road facility known as the Fairlawn Nursing Home. Thus, the initial question presented here is whether or not Respondent and the Union agreed during the 1975 collective-bargaining negotiations that the contract would apply to the employees at the new facility. The record with respect to this question shows that the testimony of Skans, Respondent's administrator of the Foster Road facility at the time, and Kelly, the Union's business agent, the sole parties to the collective-bargaining negotiations in IAll dates hereafter are in 1976, unless otherwise indicated. 2 Although the Administrative Law Judge discredits Kelly's testimony that Skans had specifically agreed that the 1976 contract would apply to the new facility, she generally finds Skans to be a credible witness, concluding 233 NLRB No. 149 1975, is consistent and uncontradicted that they had discussed the application of the contract to the new facility and agreed that it would apply. Kelly also testified that he asked Skans if he had the authority to make such an agreement and was assured by Skans that he did, which Skans' testimony also corroborates. Despite the state of the record, the Administrative Law Judge nevertheless discredits Kelly's testimony and finds that Skans' testimony concerning the purported agreement was not based on specific recollection but merely on an assumption. In reaching her conclusion as to Skans' testimony, the Administrative Law Judge confuses two distinct conversations described in his testimony. The first is his discussion during negotiations with Kelly in which he testified that he agreed that the contract would apply to the new facility and told Kelly that he had the authority from his principals to make that assurance. The record shows no equivocation or uncertainty in Skans' testimony about that discus- sion. The second conversation dealt with a discussion Skans had with Gregersen, Respondent's chairman of the board, prior to his agreement with Kelly during which Skans sought approval of the new items to be included in the 1976 contract. While we might differ with the Administrative Law Judge's conclu- sion that Skans' testimony does not establish that Gregersen in fact gave him actual authority to agree that the new contract would apply to the new location, we need not decide that question inasmuch as the record is clear that Skans, who had been the sole negotiator of several prior contracts with the Union and had given Kelly his personal assurance that he had actual authority to make the agreement in question, had at least apparent authority sufficient to bind Respondent. The Anaconda Company, 224 NLRB 1041, 1051 (1976). In addition, contrary to the Administrative Law Judge, we find that the 1976 collective-bargaining agreement itself tends to support the fact of an agreement that it would apply to the new facility inasmuch as its termination date was the end of the calandar year even though both parties were aware at the time of its signing that a mid-year relocation was all but certain. We find, therefore, that the preponderance of the credible evidence2 supports the General Counsel's contention that the parties had agreed to apply the 1976 contract to the employees at the Gresham location, that Respondent was thereby obligated to only that his testimony showed that he had no actual recollection of any side agreement with Kelly. We find, based on the record as discussed above, that such a conclusion is unwarranted. 1025 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize and bargain with the Union and to apply the contract, and that its admitted failure and refusal to do so constitutes a violation of Section 8(a)(l) and (5) of the Act. In dismissing the complaint, the Administrative Law Judge also rejected the General Counsel's alternative contention that, even if no agreement had been made to apply the 1976 contract to the new facility, the Union nevertheless represented a majori- ty of Respondent's employees at the time of the relocation and is therefore obligated to bargain on that basis alone. While resolution of this issue is not necessary in light of the result we have reached as to the establishment of the agreement by the parties to apply the contract to the new facility, we find, in agreement with the General Counsel, that the Administrative Law Judge's determination with respect to this question is also in error. The stipulation of the parties provides, and the Administrative Law Judge found, that, as of June 21, 22 unit employees were transferred 3 to the new facility and 16 new hires were also working at that time. Over the course of the following 2 weeks, 10 additional new hires began working on various dates. Although the stipulation does support the Adminis- trative Law Judge's further finding that these 10 employees had been given employment commit- ments prior to June 21, we are unable to agree with the Administrative Law Judge's comment that it is not significant that these individuals were not yet working on that date, and that day should therefore be counted in determining the size of the unit as of June 21. It is well established that an employee is not considered to be in the unit until the date he or she actually begins working.4 Therefore, inasmuch as Respondent's obligation to bargain with the Union is determined as of the time it began its operation at the new location and is not affected by the subsequent hiring of additional employees alone,5 we find that as of the commencement of operations at the new facility the Union represented at least 22 of the 38 employees in the appropriate unit, which, along with the preliminary findings of the Administrative Law Judge establishing the continuity of Respondent's operations and functions, provides a sufficient independent predicate for finding that Respondent's refusal to bargain is in violation of Section 8(a)(l) and (5) of the Act and we so find. 3 Although some undisclosed number may not have begun actually working on that date. 4 See Ra-Rich Manufacturing Corp., 120 NLRB 1444, 1447 (1958). 5 W T. Grant Company. 197 NLRB 955 (1972). 6 See, generally, Isis Plumbing & Healing Co., 138 NLRB 716 (1962). THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom in any like or related conduct and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain with the Union, we shall order that, upon request, it bargain collectively with the Union as the exclusive bargaining representative of the employees in the unit herein found appropriate at Respondent's Gresham, Oregon, facility. Having further found that Respondent's refusal specifically to apply the terms and conditions of its 1976 collective-bargaining agreement with the Union to its employees at the Gresham facility, after having agreed to do so, also violated the Act, we shall order Respondent to make whole all of its employees for any losses in wages or other benefits which may have been occasioned by Respondent's refusal to apply said collective-bargaining agreement, with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).6 CONCLUSIONS OF LAW I. Respondent is an employer engaged in com- merce within the purview 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. All nonprofessional employees of Respondent including janitors, ward maids, practical nurses, nursing attendants (male and female), window washers, seamstresses, laundry workers, culinary workers, and gardeners; excluding office clerical employees, licensed practical nurses, guards, profes- sional employees, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining.7 4. By refusing on and after June 21, 1976, to recognize and bargain collectively with the Union as exclusive representative of the employees in the appropriate unit herein described and by refusing to apply the collective-bargaining agreement in effect, Respondent has engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. I Although Respondent refused to admit to the appropriateness of this unit as alleged in the complaint and the Administrative Law Judge made no finding as to the appropriate unit, we find the above unit appropriate as the unit described in the 1976 collective-bargaining agreement between the parties. 1026 FAIRLAWN CARE CENTER APPENDIX Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lutheran Homes and Hospitals, Inc. d/b/a Fairlawn Care Center, Gresham, Oregon, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Service Employees International Union, Local No. 49, AFL-CIO, as the exclusive bargaining representative of employees at Respondent's Gresham facility in the unit hereina- bove found appropriate. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of the employees in the appropriate unit at the Gresham facility and embody in a signed agreement any understanding reached. (b) Make whole the employees in the appropriate unit for any losses in wages or other benefits, with interest computed in the manner described in the "Remedy," which may have been occasioned by the refusal to apply the 1976 collective-bargaining agreement to the employees at the Gresham facility. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Gresham, Oregon, facility copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. a In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence and cross-examine witnesses, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL recognize and, upon request, bargain with Service Employees International Union, Local No. 49, AFL-CIO, as the exclusive collec- tive-bargaining representative of employees in the appropriate bargaining unit described below and, if an understanding is reached, embody it in a signed written agreement. The bargaining unit is: All nonprofessional employees, including janitors, ward maids, practical nurses, nurs- ing attendants (male and female), window washers, seamstresses, laundry workers, culi- nary workers, and gardeners; excluding office clerical employees, licensed practical nurses, guards, professional employees, and supervisors as defined in the Act. WE WILL make whole our employees for any losses in wages or other benefits which they may have suffered because of our refusal to apply the terms of the 1976 collective-bargaining agreement with the Union, with interest. WE WILL NOT by a refusal to bargain or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act, as amended. LUTHERAN HOMES AND HOSPITALS, INC. D/B/A FAIRLAWN CARE CENTER DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This matter was heard before me in Portland, Oregon, on January II through 14, 1977. The original charge was filed by Service Employees International Union, Local No. 49, AFL-CIO, herein called the Union, on June 18, 1976, and served on Respondent on June 22, 1976; and an amended charge was filed by the Union and served on Respondent on September 8, 1976. The complaint, which issued on September 8, 1976, alleges that Respondent violated ORDER 1027 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. The basic issue herein is whether Respondent is obligat- ed to recognize and bargain with the Union and to honor the contract between the Union and Fairlawn Nursing Home. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the posttrial brief filed by Respondent,' and the oral arguments made by counsel, I make the following: FINDINGS OF FACT I. JURISDICTION Fairlawn Hospital, Inc., is an Oregon nonprofit corpora- tion wholly owned by Lutheran Homes and Hospitals, Inc., an Oregon nonprofit corporation. At all times material herein, until June 21, 1976, Fairlawn Hospitals, Inc., maintained its place of business at 10404 S.E. Foster Road, Portland, Oregon, where it was engaged in the operation of a nursing home, herein referred to as the Foster Road facility. At all times material herein, since June 21, 1976, Lutheran Homes and Hospitals, Inc., has maintained a place of business under the assumed name of Fairlawn Care Center in Gresham, Oregon, where it is engaged in the operation of a nursing home, herein referred to as the Gresham facility. During the year preceding the issuance of the complaint herein, Fairlawn Hospital, Inc., and Lutheran Homes and Hospitals, Inc., d/b/a Fairlawn Care Center, have received gross revenues in excess of $100,000, a substantial portion of which was received through federally supported health care programs. During the same period of time they received goods valued in excess of $10,000 directly from points outside the State of Oregon, or from suppliers who had obtained them directly from points outside the State of Oregon. It is anticipated that Lutheran Homes and Hospitals, Inc., d/b/a Fairlawn Care Center, alone over a 1-year period will receive gross revenues in excess of $100,000, a substantial portion of which will be derived from federally supported health care programs and during the same period will receive goods valued in excess of $10,000 directly from points outside the State of Oregon, or from suppliers who had obtained them directly from points outside the State of Oregon. The complaint alleges, Respondent admits, and I find that Respondent and Fairlawn Hospital, Inc., has been, and Respondent is now, at all times material herein, each an employer within the meaning of Section 2(2) of the Act, a health care institution within the meaning of Section 2(14) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. t The General Counsel did not file a brief. 2 Lutheran Homes and Hospitals, Inc., has sponsored such projects as summer camps, workshops, and various senior citizen programs. Its articles of incorporation state its purpose as being to acquire, own, establish, and II1. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. BACKGROUND Lutheran Homes and Hospitals, Inc., acquired Fairlawn Hospital, Inc., in 1955. Both before and after the acquisi- tion, Fairlawn Hospital, Inc., owned and operated the medical care facility which is herein referred to as the Foster Road facility. At the time of acquisition, the facility was involved in psychiatric care and known as Fairlawn Hospital. Shortly thereafter, the operation was changed to that of a convalescent care center and later to a nursing home. On or about October 1973, pursuant to instructions from the Health Division of the Oregon State Department of Human Resources, the name of the Foster Road facility was changed to Fairlawn Nursing Home so as to reflect the nature of the operation. The Foster Road facility was the sole asset of Fairlawn Hospital, Inc., and prior to 1976 Fairlawn Hospital, Inc., was the only operation owned by Lutheran Homes and Hospitals, Inc.2 On paper, Lutheran Homes and Hospitals, Inc., and Fairlawn Hospital, Inc., had separate boards of directors. However, the directors were the same, the board meetings were held jointly without any attempt to separate the discussions as pertaining to either of the organizations. In fact, the testimony reveals that some of the directors were unaware that they were members of a separate board for Fairlawn Hospital, Inc. Accountants' reports of Lutheran Homes and Hospitals, Inc., and Fairlawn Hospital, Inc., prepared by a firm of certified public accountants, dated September 30, 1975, describe the two corporations thusly: Fairlawn Hospital, Inc. is a not-for-profit long-term care facility owned by Lutheran Homes and Hospitals, Inc. The two organizations are governed by the same board of directors. Lutheran Homes and Hospitals is organized to deal with the long-range planning for and utilization of facilities whereas Fairlawn Hospital, Inc. functions as the operating entity maintaining a leased facility with 78 intermediate care beds and 25 room and board beds. The lease terminates June 30, 1976, and can be extended. At the time of its acquisition by Lutheran Homes and Hospitals, Inc., the employees at the Foster Road facility were represented by the Union and thereafter the Union and Lutheran Homes and Hospitals, Inc., entered into successive bargaining agreements, the last of which was negotiated in December 1975 to be effective from January I to December 31, 1976. At the time of the 1975 negotiations, Lutheran Homes and Hospitals, Inc., was in the process of constructing the Gresham facility. It is undisputed that Lutheran Homes and Hospitals, Inc., operate hospitals in the State of Oregon and acquire, own, establish, and operate Christian institutions and homes in the State of Oregon for the aid. care, and nurture of the mentally and physically ill or disabled and the aged. 1028 FAIRLAWN CARE CENTER embarked upon the construction of the Gresham facility as a result of its determination that it would be economically unfeasible to bring the physical facilities at Foster Road into conformance with state requirements for nursing homes. Thus, the Foster Road facility had been sold and the proceeds 3 from that sale had been commingled with funds raised from other sources4 and used to purchase the land for the Gresham facility. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Gresham facility began operations on June 21, 1976, 5 and the Foster Road facility ceased operations on that same date. It is undisputed that the Union sought to apply to the Gresham facility the collective-bargaining agreement which covered the Foster Road facility. It is also undisputed that Respondent refused to honor this collec- tive-bargaining agreement at the Gresham facility and that it refused to recognize the Union as the collective-bargain- ing representative of the employees at the Gresham facility in the unit alleged as appropriate. By letter dated June 10, Respondent informed the Union: Due to problems beyond our control we have been forced to close Fairlawn Nursing Home, 10404 S. E. Foster Road, Portland, Oregon. The nursing Home is scheduled to cease operations and go out of business on or about June 15, 1976. The nursing home license is being allowed to lapse and the property has been sold. Upon the termination of the operation of this establish- ment, we will also be terminating our relationship with your Union as set forth under the terms and conditions of the current Labor Agreement between Local No. 49 and Fairlawn Nursing Home. However, we are prepared to meet and negotiate the effects the closure may have on bargaining unit employees you represent, if you should wish to do so. We will assume no liability under the aforesaid Labor Agreement after June 15, 1976. If you have any questions please contact me. Later Respondent notified the Union that the closing date would be June 21. The Union protested, to no avail. During the first week of July, Union Representative Edna Peterson attempted to visit the Gresham facility under the contract clause granting union representatives access to the premises. Admittance was denied. 3 The facility was sold in 1974 for $210,000 and was leased back. The lease expired June 30, 1976. 4 The September 30 accountants' report shows that $83,551 was transferred to the general fund of Lutheran Homes and Hospitals, Inc., from the relocation fund (the assumed name for the fund-raising activity for the Gresham facility) and $149.178 was transferred from Fairlawn Hospital, Inc. This constituted the major portion of Respondent's financial resources of $305,256, of which $228,745 had been used for the land and building construction for the Gresham facility. The remainder of the S 1-1/2 million cost of the facility was financed through loans of $1,383,000. The General Counsel contends that the Gresham facility is merely a relocation of the Foster Road facility or that Respondent is an alter ego of or successor to Fairlawn Hospitals, Inc. Thus, argues the General Counsel, Respon- dent at the very least is obligated to recognize and bargain with the Union. Respondent contends that it has no obligation to recognize and bargain with the Union nor to honor the collective-bargaining agreement in effect at the Foster Road facility. It contends that the Gresham facility has no relationship to the Foster Road facility. The record indicates otherwise. The Gresham facility opened on June 21 with 65 patients, 63 of whom transferred from the Foster Road facility. The Foster Road facility was licensed as a 78-bed intermediate care center. The Gresham facility was licensed for 46 skilled-care beds and 56 intermediate-care beds.6 However, when it first opened, it had no skilled-care patients and only two patients other than those transferred from the Foster Road facility.7 The Gresham facility admitted its first skilled-care patients in July. Initially, there were only two or three skilled-care patients. In August probably two or three others were admitted. At the time of the hearing there were 18 to 20 skilled-care patients and an additional 21 intermediate-care beds had been licensed. The financing of the Gresham facility required approval by a Federal agency. This was secured with the assistance of A.E. Brim & Associates, herein called Brim. Brim's assistance was sought after the unsuccessful fund-raising drive. Also Oregon State law prohibits the construction and operation of new nursing home facilities unless a certificate of need is granted by the State, so Brim assisted in preparing the application for a certificate of need for the proposed Gresham facility. The certificate of need which was granted, as requested in August 1974, recites that the application requests a certificate of need to relocate and replace a 120-bed nursing home, known as Fairlawn Nursing Home. 8 The 1975 annual report of the Foster Road facility filed with the State as required by law gives the name of the institution as Fairlawn Nursing Home and Lutheran Homes and Hospitals, Inc., as the organization conducting the institution. There is no reference to Fairlawn Hospitals, Inc. Bed capacity is listed as 78 and percentage of occupancy as 76.5. The report further notes a planned expansion to be completed in July and describes the expansion as a 123-bed facility in Gresham. In June, by memo from John Loftus, administrator of the Gresham facility, the employees of Fairlawn Nursing Home were notified that all employees of Fairlawn Nursing Home will be accepted for employment at Fairlawn Care Center and that vacations, tenure, wages, and sick leave will carry forward for all personnel. All 5 Unless otherwise stated, all dates hereinafter in December will be in 1975 and all other dates will be in 1976. 6 A skilled-care center requires more hours of nursing care per patient than does an intermediate-care center. 7 There had been about 77 patients at the Foster Road facility also. Some "patients" who actually required no medical care were not transferred to the Gresham facility. Instead, room and board accommodations were secured for them elsewhere. s Skans testified that the number 120 was a mistake, that the request was to replace a 78-bed facility and add an additional 46 beds. 1029 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees are to receive termination checks (vacations will not be paid off but will carry forward and continue as scheduled) and employees who wish employment at the Gresham facility must fill out new application forms listing the original hire date at the Foster Road facility. Other indicia that Respondent considered the Gresham facility as a replacement for the Foster Road facility is a letter dated May 10, 1976, from Skans to the State of Oregon Department of Human Resources. This letter states that the Gresham facility which will replace the Foster Road facility is nearing completion and recites his understanding that the agreement between the Fairlawn Nursing Home and the welfare division will be assumed by the Fairlawn Care Center 9 and that the Fairlawn Care Center license will take the place of the Fairlawn Nursing Home license. The administrator's report to the board for June 21 through July 26, 1976, states that Fairlawn Nursing Home's general bank account was to be closed out and transferred to the Fairlawn Care Center's general bank account. The minutes of Respondent's executive board meeting on June 15 states that Loftus is to secure bids for the inventory of the Foster Road facility and further states that 21 employees held a meeting and voted to keep the Union and that recommendations should be obtained from Norman Burr, labor consultant. The minutes of Respon- dent's board of directors meeting of June 8 states that Paul Dailey, Respondent's attorney and board member, in- formed the board that Fairlawn Hospital, Inc.'s, IRS number will/can be used by Lutheran Homes and Hospitals, Inc. The management of the Gresham facility was contracted to Brim, who hired John Loftus as the administrator. Prior to June 21, Loftus met with the employees at the Foster Road facility in implementation of that portion of the collective-bargaining agreement permitting employees to transfer to the Gresham facility. All personnel and labor relations policies at the Gresham facility were established by Brim and approved by Lutheran Homes and Hospitals, Inc. Lawrence Gregersen, president of the board of directors of Lutheran Homes and Hospitals, Inc., testified that the wage rate was established by Brim but was not specifically approved by the board. As of June 21, 22 of the approximately 50 employees in the bargaining unit at the Foster Road facility transferred to the Gresham facility. They retained their seniority for such purposes as vacation. On or before June 21, 26 additional persons were given employment commitments, 1 of whom began work in the bargaining unit on June 3, 1 on June 16, 1 on June 20, 13 on June 21, 3 on June 23, 1 on June 25, 1 on June 27, 1 on June 28, 1 on July 3, 2 on July 5, and I on July 6. A limited amount of equipment and supplies was transferred from the Foster Road facility to the Gresham facility. Loftus was given authority to take anything from Foster Road that he desired. I find that the equipment and supplies transferred were insignificant. The Gresham facility was completely equipped under the terms of the financing. 9 As of July 26, 53 of the 80 patients were welfare patients. 10 There appears to be nothing in the management contract which would preclude approval of such a provision. Supervisory personnel were hired by Brim. None of the supervisory personnel at Foster Road were retained at Gresham in the positions they held at the Foster Road facility. Prior to June 21, employees at the Foster Road facility were utilized in preparing the Gresham facility for opening to perform such services as making beds. They were paid by the Foster Road facility. Also Loftus handled all the unemployment claims of those employees who did not transfer to the Gresham facility. The Union did not respond to Respondent's June 10 letter offering to bargain regarding the effect of the closing of the Foster Road facility. However, some bargaining in this regard had occurred during the December negotiation of the 1976 collective-bargaining agreement. Eugene Kelly, assistant business representative for the Union, and Williams Skans, administrator of the Foster Road facility, were the negotiators of this and many previous agreements. During the 1975 negotiation sessions, they discussed what they termed the relocation of the Foster Road facility to Gresham, a distance of about 19 miles. According to Kelly, on December 2, he asked Skans when the move would take place. Skans replied that the target date was around the first of June 1976. Kelly said the Union wanted a contract that would cover the operation on Foster Road until it was discontinued and would permit the employees at the Foster Road facility to transfer to the Gresham facility when it opened. Skans agreed. Kelly suggested that, with new facilities, better wages could be afforded. Skans said he did not know but they would consider it. At a negotiation session the following week, according to Kelly, Skans proposed that they enter into an agreement for a term of 6 months and then negotiate a new contract for the new facility. Kelly said that would not be feasible, particularly with the 90-day notice required under the law and said that I year would be the shortest contract term the Union would consider. They finalized a contract which Skans took back to Board President Gregersen. According to Skans, he discussed with Gregersen the wage schedule and the transfer of persons employed at the Foster Road facility to the Gresham facility. Skans testified that he and Gregersen discussed the term of the contract being for I year, but he does not recall exactly what was said. Skans asked if he should sign the contract. Gregersen replied, "Yes, you'd better sign the contract because we don't want a strike out at the new facility." Gregersen denies giving his approval to the transfer of employees to Gresham. He states that he told Skans that he had no authority to approve such a provision because manage- ment of the Gresham facility had been given to Brim and that Skans should discuss the matter with Jim Williams of Brim.1o Skans denies that Gregersen instructed him to seek approval from Williams. According to him, Gregersen told him to sign the contract and mail a copy to Williams. I credit Skans. He impressed me as an honest, forthright witness. On the other hand, I found Gregersen to be an evasive witness whose testimony was contradictory. On December 19, according to Kelly, Skans again assured Kelly that the nursing home would move to 1030 FAIRLAWN CARE CENTER Gresham in June. Kelly asked, "The contract will cover both places?" Skans replied that that was his understand- ing, that it had been approved. Kelly prepared the contract and around Christmas took it to Skans to be signed. According to Kelly, Skans said his board was considering employing a management company to administer the new facilities. They again discussed whether the contract would cover the new facility and agreed that it would. A signed contract was returned to Kelly around January 8. The only reference therein to the new facility was in article IV which reads, inter alia: All employees who wish to go out to the new Nursing Home shall be assured of employment at the new Nursing Home. The contract names the employer as Fairlawn Nursing Home. According to Kelly, he asked Skans what the name of the new facility would be. Skans did not know but suggested that they would be covered if the name Fairlawn Nursing Home was used in the contract. Kelly also testified that he specifically asked Skans if he had authority to negotiate a collective-bargaining agreement covering the new facility. Skans said he did. Skans testified that the board had given him specific authority to negotiate with the Union, that he is sure that Kelly asked whether the contract would cover the new location, and that he agreed that it would. However, he gives no specifics of this discussion. Rather, he testified: A. It certainly came up in our discussion that we were relocating, and that the contract, like I said before, went to December 31, 1976, so we both felt that the new place would be under the existing contract. My reason for expressing this to Mr. Kelly, too, was conversation with Mr. Gregersen that we were entering into a negotiation that would extend [to that time. When asked about the reference to Gregersen, Skans testified: A. Well, again, I can't pick words, but I discussed with Mr. Gregersen the wage schedule that was proposed, and told him I felt it was acceptable to us where we were, and we mutually agreed, by this phone conversation, that it certainly would be a minimum of what would be expected in the new [location] as far as arriving at any kind of rates. I told Mr. Gregersen that I was going to sign the contract with those terms, and he said, "Go ahead," so my discussion with Mr. Kelly was with the understand- ing that the contract was signed for a year, period. Q. (By Mr. Cubbison) Do you recall whether or not Mr. Kelly specifically asked you whether or not the new agreement would extend and cover the new facility in Gresham? Do you recall him asking you that during the negotiations? A. Oh, I'm sure he did. 1I Skans was not questioned in any detail regarding the conversation with Kelly. * t Q. All right, do you recall what, if any, your response was to Mr. Kelly when he asked you that question? A. My response was that it would apply, yes. On cross-examination, when pressed for specifics of the conversation, he admitted he had no specific recollection of such a discussion, that perhaps he was making an assumption, that he really did not recall other than that he felt Gregersen understood and knew the contract was going to be for a year. Later he testified that all he recalled was "that Gregersen understood the contract was to be for a year and that it would relate to the new facilities because of that agreement." 11 Upon a consideration of the totality of Skans' testimony in this regard and his demeanor on the witness stand during this portion of his testimony, I am convinced that he has no actual recollection of any specific agreement that the collective-bargaining agreement would cover the Gresham facility. Rather, he assumed that it would, because the contract term extended through December 31, 1976, and further assumed that this was understood by everyone concerned. I do not credit Kelly's testimony of a specific agreement in this regard. If he had been as specific as he claims in seeking such agreement, and if Skans had in fact specifically agreed that the contract would cover the Gresham facility, then it would seem that Kelly would have included this in his draft of the contract just as he included the agreement that all employees who so desired could transfer to Gresham. In all the circumstances, I find that no specific agreement was reached that the collective- bargaining agreement would be extended to the Gresham facility. B. Conclusions In the circumstances set forth above, I find that the opening of the Gresham facility was a mere relocation of the Foster Road facility, a continuation of that facility in a new location under a new name. Section 8(a)(5) of the Act requires that in the case of a relocation of a facility, the employer is required to bargain with the representative of its employees at the old facility as to the effect of the relocation. It is undisputed that Respondent did so bargain during the 1975 contract negotiations and in June offered to bargain further. The Union never responded to this offer. Thus the only issue herein is whether Respondent was obliged to recognize and bargain with the Union at the Gresham location and, if so, whether it was obligated to honor the Foster Road facility contract. The Board has held that an employer is obligated to bargain at a new location only in two circumstances: if the union represents a majority of the employees at the new plant or, in the absence of majority representation, if the lack of majority has been caused by the employer's unfair labor practices. American Can Company, 218 NLRB 102 (1975); Fraser & Johnston Company, 189 NLRB 142 (1971), 1031 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enfd. in part 469 F.2d 1259 (C.A. 9, 1972); Pierce Governor Company, Inc., 164 NLRB 97 (1967), enfd. 394 F.2d 757 (C.A.D.C., 1968); Cooper Thermometer Company, 160 NLRB 1902 (1966), enfd. in part 376 F.2d 684 (C.A. 2, 1967). Here there is no allegation or evidence of any unfair labor practices affecting majority, so the crucial question is, did the Union represent a majority of the employees at the Gresham location. I find that it did not. As of the opening 12 The collective-bargaining agreement covering the Foster Road facility contains a maintenance-of-membership clause plus a provision that employees who choose not to join the Union will be required to donate to United Way, through the Union, a monthly amount equal to union dues. There is no evidence in the record as to how many of the transferred employees were union members. date, June 21, 22 unit employees'2 had transferred from the Foster Road facility and 26 new employees had been hired in the appropriate unit.13 I therefore find that Respondent was not obligated to recognize and bargain with the Union at the Gresham facility, and by refusing to do so did not violate Section 8(aX)(1) and (5) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 13 I do not consider it significant, in the circumstances, that some of the 48 unit employees did not actually begin work at the Gresham facility on June 21. 1032