Kaiser Foundation Hospitals

468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaiser Foundation Hospitals;The Permanente Medical Group; and Kaiser Foundation Health Plan and Alsam G. Small DECISION STATEMENT OF THE CASE Hospital and Institutional Workers Union, Local 250 and Alsam G. Small. Cases 20-CA-10516 and 20- CB-3483 March 1, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On November 30, 1976, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Union, Hospital and Institutional Workers Union, Local 250, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The Respondent 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 credibili- ty 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 However, we hereby correct the following factual errors which do not , in our opinion, affect the correctness of the Administrative Law Judge's conclusion that Respondent Union has failed to rebut the General Counsel's showing that before the 1974-75 changes the parties' contracts excluded therapists who were not members of Respondent Union from the bargaining unit for which the Union was recognized : Contrary to an implication of the Administrative Law Judge regarding mileage benefits enjoyed by therapists, the record reveals that some other employees receive such benefits when they use their own automobiles to travel for the Respondent Employers. Also, with regard to the provision of the Respondents' agreement concerning notification of the Respondent Union when a job vacancy occurs within the bargaining unit, there is no evidence, as the Administrative Law Judge assumes, that the Union maintains a list of available employees in classifications other than therapist. 228 NLRB No. 57 WILLIAM J. PANNIER III , Administrative Law Judge: This matter was heard by me in San Francisco , California, on May 6 and June 1 through 4 and June 11, 1976. On January 30, 1976, the Regional Director for Region 20 of the National Labor Relations Board issued an order consoli- dating cases, consolidated complaint, and notice of hearing based upon unfair labor practice charges filed in Case 20- CB-3483 on May 1, 1975, and served on May 5, 1975, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act, and filed in Case 20-CA- 10516 on August 12, 1975, and served on August 13, 1975, alleging violations of Section 8(a)(1), (2), and (3) of the Act.' All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of each of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION At all times material, Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, herein called Respondent Employers, have been corporations and are joint employers engaged in providing prepaid health care services through the opera- tion of acute care hospitals, outpatient clinics, pharmacies, optical laboratories, and other facilities, including medical centers located at Sacramento, Hayward, Oakland, Red- wood City, Richmond, San Francisco, San Rafael, Santa Clara, South San Francisco, Vallejo, and Walnut Creek, California. During the past calendar year, in the course and conduct of these operations, Respondent Employers de- rived gross revenues in excess of $250,000 and, moreover, purchased and received materials and supplies valued in excess of $50,000 which were shipped directly to Respon- 1 The charge in Case 20-CA-10516 also alleged a violation of Sec. 8(a)(5) of the Act, but no violation of that section of the Act has been alleged in the complaint nor urged by the General Counsel. KAISER FOUNDATION HOSPITALS, ET AL. 469 dent Employers' medical centers from suppliers located outside the State of California. Therefore, I find that Respondent Employers are en- gaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, Hospital and Institutional Workers Union, Local 250, herein called Respondent Union, has been a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES 1. Whether all employees in the classifications physical therapist, speech therapist, and occupational therapist have been historically included in the bargaining unit for which Respondent Employers have recognized Respondent Union as the bargaining representative or, alternatively, whether only those therapists who were members of Respondent Union have been historically included in that unit, with the result that Respondents violated the Act in December 1974 by reaching agreement to include all therapists in the unit and by thereafter executing a contract which imposed union-security requirements on all thera- pists in the three classifications. 2. Whether employees classified as physical therapist, speech therapist, and occupational therapist are profession- al employees within the meaning of Section 2(12) of the Act and, if so, and if the effect of the December 1974 agreement was to add therapists who had not been represented by Respondent Union to the bargaining unit, whether Respon- dents independently violated the Act by not affording those therapists an opportunity to determine whether they desired to be included in a bargaining unit embracing nonprofessional employees. 3. Whether a finding of a violation, otherwise warrant- ed, is barred against Respondent Employers under Section 10(b) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Whether Therapists Were Added to the Unit in December 1974 1. Contentions of the parties Respondents have maintained a collective-bargaining relationship for over 20 years. In December 1974, they reached agreement on the terms of their latest contract, paragraph 4 of which provides that all employees covered by the agreement must become and remain members of Respondent Union within 31 days after execution of the agreement or the date of hire, depending, essentially, upon whether the employee was employed by Respondent Employers before or after execution of the agreement. In addition, paragraph 6 of that agreement states: 2 In addition to the aforementioned three classifications , the physiothera- py or therapy department has included, over the years, employees classified in several other classifications such as therapy aides, therapy technicians, Effective ninety (90) days after the ratification date of this Agreement, employees in the classifications of Physical Therapist, Speech Therapist and Occupational Therapist must either satisfy the Union membership requirements in accordance with paragraph 4 above or in lieu of becoming and remaining a Union member pay to the Union a monthly fee equivalent to the established monthly dues of the Union. At the time this agreement was reached, Respondent Employers employed 65 therapists in the three classifica- tions at the facilities covered by the agreement. The General Counsel called 39 of these therapists, each of whom testified that he or she had never joined Respondent Union, had never designated or selected Respondent Union as his or her representative, and had never desired representation by Respondent Union. Respondents, however, contend that, notwithstanding the understanding of the individuals who were employed in the three classifications in December 1974, therapists have always been part of the bargaining unit since 1953 and have been covered by the successive collective-bargaining agree- ments negotiated between the parties since that year. Thus, contend Respondents, the only change made by the December 1974 agreement was to extend to the therapists union-security obligations from which they had been exempted under prior agreements, with their coverage under the agreements remaining the same. In opposition, the General Counsel asserts that Respondents' agreements, prior to that of December 1974, were applicable to the three therapist classifications only to the extent that individual therapists became members of Respondent Union. Thus, urges the General Counsel, it was not until the modification of December 1974 that all therapists became subject to representation by Respondent Union and to coverage under its agreement with Respondent Employers. Conse- quently, under the General Counsel's theory, the benefits which nonmember therapists enjoyed prior to the most recent agreement were not the product of representation by Respondent Union, but rather arose from Respondent Employers' decision to extend the same benefits to them as had been negotiated for member therapists by Respondent Union; it was "a gratuitous undertaking rather than one of contractual obligation ...." J. F. Johnson Lumber Compa- ny, 73 NLRB 320, 322, fn. 4 (1947). 2. The collective-bargaining agreements In resolving this issue, initial resort must be made to the agreements between the parties. In 1953, the initial agree- ment covering technical employees was executed. Included in the definition of "employees," as set forth in that agreement, were "All employees in the . . . Physiotherapy Department .... 112 Article III of the agreement was labeled "Recognition and Union Security" and was subdi- vided into five sections. Section 1 provided that Respon- dent Employers recognized Respondent Union "as the exclusive bargaining agency of the employees covered by this Agreement." Section 2 provided for maintenance of and receptionists. There is no dispute concerning the fact that employees in these classifications have been represented by Respondent Union. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership by all employees "who have become members of or have applied for membership" and for "all employees hereafter hired within the classifications covered by this Agreement." Section 3 required that all employees hired by Respondent Employers become members within 31 days following the beginning of their employment. Section 5 provided for replacement of employees who failed to fulfill this obligation by others who were willing to comply. Section 4 read as follows: Exceptions - The provisions of Article III, Sections 1, 2 and 3, hereinabove, shall not apply to the following classifications except as hereinafter stated: Physical Therapists, Speech Therapists, and Occupational Ther- apists shall not be required to become members of the Union as a condition of employment; however, such Therapists who have become or shall hereafter become members of the Union shall be required to maintain membership in the Union thereafter as a condition of employment for the duration of the Agreement. Subsequently, the parties negotiated a new agreement in 1954; the first master agreement embracing all of Respon- dent Employers' northern California facilities. That agree- ment, as well as the two which succeeded it, carried forth the provisions of article III in the same form as they had appeared in the 1953 contract with one exception - the definition of the term "employee" was deleted, thereby eliminating the reference to the physiotherapy department which had appeared in the 1953 agreement. The 1962 agreement contained a major modification of article III. While section 1, "Recognition," read as it had in prior contracts, section 2 combined the formerly separate sections relating to membership in Respondent Union, thereby creating a single section pertaining to "Union Membership." Section 3, "Exceptions," was also changed so that it read: The provisions of Article III, Sections 1 and 2 hereina- bove, shall not apply to the classifications of Physical Therapists, Speech Therapists, and Occupational Ther- apists; provided, however, that Section 1 of this Article III shall be applicable to employees in these classifica- tions who have become or shall hereafter become members of the Union and with respect to such employees they shall be required to maintain member- ship in the Union thereafter. This was the format of article III in all subsequent agreements between the parties until the above-described provisions were included in the December 1974 agreement. Since execution of the 1974 agreement, Respondents have notified the therapists that, if they fail to satisfy the membership requirements or to pay a monthly fee equiva- lent to established dues, their termination will be demanded by Respondent Union. Absent a finding of accretion, an existing bargaining unit may not be expanded to include additional groups of employees without affording the latter an opportunity to express their preference for representation. See Sunset House, 167 NLRB 870, 872-874 (1967), enfd. 415 F.2d 545 (C.A. 9, 1969). An accretion, however, cannot be found where the parties intended to and have excluded those employees from the unit during previous negotiations and in prior collective-bargaining agreements. Amcar Division, ACF Industries, Inc., 210 NLRB 605 (1974); The Horn & Hardart Company, 173 NLRB 1077, 1079 (1968). Therefore, when employees who have been excluded from the historic bargaining unit are added to that unit and are made subject to the provisions of a union-security clause under circum- stances where they have not been afforded a free choice in the selection of their representative , the contracting em- ployer violates Section 8(a)(1), (2), and (3) of the Act and the contracting union violates Section 8(b)(l)(A) and (2) of the Act. The Item Company, 113 NLRB 67,68 (1955). In the instant case, Respondents assert that the three therapist classifications were not added to the unit in December 1974 because they have always been a part of the historic bargaining unit. Conversely, the General Counsel contends that, at best, only members of Respondent Union have been historically included in the bargaining unit and, consequently, that Respondents' December 1974 change in the wording of article III operated to add nonmember therapists to the unit at a time when a majority of them had neither designated Respondent Union to act as their representative nor had desired representation by Respon- dent Union. To resolve this issue, the threshhold inquiry must be directed to the scope of Respondents' bargaining unit as defined in its various agreements. In making the determination as to whether Respondents' contracts extended only to member therapists , the wording of the recognition clause, while significant, is not disposi- tive. An agreement appearing to cover all employees may, in fact, be confined only to employees who are members of the contracting bargaining representative . Cargo Packers, Incorporated, 109 NLRB 1184 (1954); Solventol Chemical Products, Inc., 113 NLRB 617 (1955); Paramount Press, Inc., 187 NLRB 586 (1970). By contrast, a recognition clause which appears to be confined to members may, in fact, be found applicable to all employees in the affected classifications. Post Houses, Inc., 173 NLRB 1320 (1968); Hebron Brick Company, 135 NLRB 245, 246 (1962); Herff Jones Company, 97 NLRB 1070 (1952). Where ambiguity exists regarding the coverage of the unit in a collective- bargaining agreement , resolution is made "by considering the intent and practice of the contracting parties." Post Houses, supra,' HerffJones, supra at 1072. In the instant case it is clear that, at the very least, an ambiguity did exist under the terms of article III, section 4, as it appeared in the agreements prior to 1962 . Thus, the broadly worded recognition clause in article III, section 1, and the separate "Union Membership" requirements of sections 2 and 3 were limited by an exception applicable not merely to the latter two sections , but also to the recognition section as well. However, the exception clause is susceptible to an interpretation that article III, sections 1 through 3, were not applicable only to the extent that the three therapist classifications "shall not be required to become members of the Union as a condition of employ- ment." Under this interpretation , the reference to section 1 might be construed as no more than a poorly drafted effort at completeness in an exception provision which, by its KAISER FOUNDATION HOSPITALS, ET AL. 471 express terms, is designed only to exempt the therapists from the requirement of membership in Respondent Union. Yet, such an explanation falters when considering the language of the exception provisions as set forth in the last six agreements preceding the one in force at the time of the hearing. For, in addition to renewing the preambular exclusionary statement that section 1, inter alia, was not applicable to physical therapists , speech therapists, and occupational therapists, section 3 continues to state specifi- cally that section 1 is "to be applicable to employees in these classifications who have become or shall hereafter become members of the Union ." Accordingly, in contrast to the pre- 1962 agreements, the 1962 and succeeding contracts combined both an exclusion from the unit with a specific inclusion in the unit confined solely to therapists who "become members of the Union ." The literal meaning of the provision , therefore, excludes nonmember therapists from the bargaining unit for which Respondent Employers dealt with Respondent Union as the representative. See, e.g., Rankin Equipment Co., 79 NLRB 1439 (1948); B. F. Hirsch, Inc., 57 NLRB 59, 64 (1944). However, it is undisputed that all therapists receive identical benefits and wages , without regard to their membership or nonmembership in Respondent Union, and, further, that the substantive provisions of the succes- sive agreements have not been confined to Respondent Union's members by their terms. Such factors have led the Board to construe recognition clauses , seemingly confined to union members, as ambiguous and as warranting examination of the intent and practice of the parties. Post Houses, supra; Hebron Brick, supra; Herff Jones, supra. Accordingly, it is to these factors which attention must now be directed. 3. The intent of the contracting parties In determining whether the successive agreements have contemplated a bargaining unit covering all therapists, without regard to their membership in Respondent Union, it should be borne in mind that at no point have employees classified as therapists voted for representation by Respon- dent Union. Nor, so far as the record discloses, have the therapists, at any point in time since 1953, designated Respondent Union as their representative by any other means. There is simply no showing of therapist assent to representation by Respondent Union. Consequently, to find that, notwithstanding the express provisions of article III, all therapists have been included historically in the bargaining unit, it must be shown that the parties contemp- lated such a result during their negotiations. However, despite the generalized assertions of Respon- dents' witnesses that the parties intended their agreements to cover nonmember therapists, no specific testimony was elicited from any of them regarding specific conversations to that effect during negotiations. In fact, only one witness - Richard Liebes, Respondent Union's principal spokes- man during the negotiations with Respondent Employers - was presented who had participated in the initial negotiations between the parties. Yet, when asked what negotiations or discussions had taken place regarding the exception provision in that agreement, Liebes replied, "I just don't recall." Similarly, no testimony regarding specific discussions or negotiations was adduced with respect to any other agreement, including that negotiated in 1962 when the significant change in the wording of the exception provision was made. In this regard, Liebes was asked specifically, during cross-examination, why Respondents had seen fit to even mention section 1 in the exception provision. However, he replied only that he recalled "nothing specific" about the discussions of the matter. Although other witnesses, who had participated in negotiations subsequent to those which occurred in the 1950's, appeared for Respondents, like Liebes, none of them testified to any specific discussions between Respon- dents' representatives that would support their generalized assertions that, notwithstanding the wording of the excep- tion provision, it was intended that all therapists, member and nonmember, would be embraced by the collective- bargaining agreements which were executed. In these circumstances, their generalized assertions amount to no more than "choosing up sides" and are not sufficient to support Respondents' defense that all therapists were included in the historic bargaining unit. Respondent Employers argue that the intent to include all therapists in the unit was illustrated in 1953 when the physiotherapy department was included in the definition of "employee" set forth in the agreement negotiated that year. However, neither the definition nor a specific reference to the physiotherapy department was ever again mentioned in subsequent contracts. Nor was any explanation advanced for the omission of such a definition from the subsequent contracts. Accordingly, Respondents cannot rely on the wording of an agreement, two decades old, to establish that their later agreements were intended to cover all therapists, notwithstanding the fact that the wording on which they rely had never been repeated and the further fact that more proximate agreements all contain an exception clause worded in a manner different from that which appeared in the 1953 agreement. Vice President for Employee Relations Edwin Bell testified that, during the early to mid- 1950's in Southern California, Respondent Employers had negotiated a similar exception provision in an effort to compromise between the somewhat conflicting goals of avoiding proliferation of units through "umbrella coverage" while at the same time not deterring therapist applicants: It was our feeling at the time and our understanding at the time that the temper of those people in those classifications was such that they did not want to be in the same contract with other employees or in union contracts of any kind and therefore, we said, "Fine; we want the umbrella kind of coverage in our bargaining unit" but in order to satisfy our requirements to our membership, we would not require them to become members of the union. [Emphasis supplied.] Of course, Bell had not been present during the negotia- tions for the initial Northern California agreement, and the Southern California one was not presented so that it could be ascertained if its provisions were, in fact, similar to those in the Northern California agreement between Respon- dents. But, his testimony is more intriguing for the admission, italicized above, that Respondents were fully 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aware not simply, as Respondents urge, that therapists did not want to be members of Respondent Union (which could be satisfied with a simple exemption from "union membership" obligations). Rather, Bell's testimony de- monstrates that the real concern which Respondent Em- ployers were attempting to satisfy extended beyond mere membership to the therapists' desire not to be represented - period. Viewed in this light, it would appear that Respondents attempted to resolve a conflict between nonproliferation and the desires of therapists to remain unrepresented. They did so by extending the agreement to therapists, thereby discouraging other labor organizations from attempting to organize the therapists, but included a clause which then removed all therapists from the unit, reinserting only those who became members of Respondent Union, thereby indicating their lack of opposition to representation by Respondent Union in a unit with nonprofessional employ- ees. Clearly, therefore, Bell's statement, at the very least, fails to support Respondents' contention that the wording of article III was not intended to restrict Respondent Union's representation of therapists to those who were members. Instead, his description of Respondent Employ- ers' goals tends to fortify the General Counsel's argument that the contracts have covered only those therapists who were members of Respondent Union. Respondents further argue that their intent to cover both member and nonmember therapists is evidenced by the fact that all therapists receive the same benefits and by the further fact that those are the benefits set forth in the contracts negotiated by Respondents. But this does not resolve the matter, for the question is the basis upon which those benefits are provided to the nonmember therapists. Thus, if Respondent Employers have been extending benefits to nonmember therapists for administrative conve- nience, and not by virtue of Respondent Union's represen- tation, then it is a gratuitous undertaking rather than one of contractual obligation," Johnson Lumber, supra, in which event, the nonmember therapists have not been represented historically by Respondent Union. Two factors tend to support the conclusion that this has been the fact, contrary to the argument advanced in Respondent Employers' brief. First, there is evidence that Respondent Employers have been extending the benefits of its agreements with Respon- dent Union to concededly unrepresented employees. Northern California Labor Relations Representative Mari- lyn Morrish conceded that Respondent Employers may have chosen to so extend these benefits in this manner. Even more pointed was the testimony of Payroll Supervisor Judy Trischan: "We have a few people that follow the local 250 agreement, but are not considered local 250 employ- ees." Consequently, representation by Respondent Union does not define the scope of the employees to whom the benefits negotiated will be extended at Respondent Em- ployers' discretion. Second, in an effort to support Respondents' position, Bell explained that Respondent Employers would not recognize a labor organization for only members in classifications, since: ... we essentially have a program of people doing generally the same kind of work or the same kind of work at equal pay and we try to relate the salaries in one location versus another, and that they are paid the same sort of wages and same sort of conditions and that would be, I think, unfair to change that program. Yet, this is a two-edged sword. Were Respondent Employ- ers to have a reason for recognizing a labor organization as the representative of only members in a given employee classification, such as it had under Bell's explanation of the concern regarding therapists' desire for unrepresented status, then its policy of parity in terms of employment would operate in the other direction - extending to the unrepresented employees in the classification the same benefits as the represented ones received by virtue of negotiations. The point, however, is not to ascertain and compare the benefits which therapists do receive. It is, instead, to ascertain the source of those benefits and from that source to attempt to infer whether the contracting parties intended to include all therapists in the bargaining unit. Here, where Respondent Employers have a policy of parity of benefits for similarly situated employees and concededly do extend the benefits of their agreements with Respondent Union to admittedly unrepresented employees, it can hardly be said that intent to include all therapists in the bargaining unit can be inferred from the fact that their benefits are identical. Finally, there is the matter of the role, if any, that nonmember therapists played in the process of negotiating contracts. So far as the record discloses, no therapist has ever participated on Respondent Union's negotiating committee during its 20-year history of bargaining with Respondent Employers. See Paramount Press, Inc., 187 NLRB 586 (1970); cf. The Armstrong Rubber Company, 208 NLRB 513, 514 (1974). Nor have Respondents shown that any therapists ever submitted proposals for Respondent Union to advance during its negotiations with Respondent Employers. While Liebes testified that therapists at the South San Francisco facility had contributed to the 1974 negotiations, he conceded that these therapists had been members of Respondent Union, thereby dispelling any possibility of relying on this matter as a basis for inferring intent to represent nonmember therapists. Moreover, Liebes did not specify the nature of the contribution which the South San Francisco therapists had made to the 1974 negotiations. Significantly, a change in California licensing regulations had led the parties to revise the therapy classifications during the 1974 negotiations. In an effort to obtain information on the change, Business Representative Jeff Greendorfer had spoken to therapists at Respondent Employers' San Francisco, Hayward, and Vallejo locations. However, Greendorfer did not recite the substance of these conversations and he identified only Joan Mason, a member therapist at San Francisco, as one of the therapists with whom he had spoken. As neither Mason nor any other therapist was called by Respondents to describe the conversations with Greendorfer, it is, accordingly, unpossible to ascertain if these conversations amounted to simply questioning nonunit employees (in the case of therapists other than Mason) regarding their conditions of employment or, alternatively, if the conversa- tions rose to the status of a bargaining agent conferring with employees whom the agent represented. Moreover, if KAISER FOUNDATION HOSPITALS, ET AL. 473 these are the conversations to which Liebes was referring, then his testimony, like that of Greendorfer, will not support a finding that the continuing intent of the parties to include nonmember therapists in the historical bargaining unit is shown by the substantive contributions which he asserted had been made by therapists to negotiations for the 1974 agreement. Finally, even if physical therapists, as a class, were discussed, this would still not establish historical representation since it was the 1974 negotiations which led to the assertedly unlawful inclusion of all therapists in the unit. Three of Respondent Union's officials - San Francisco Area Regional Supervisor Robert J. Cooper, Sacramento Area Business Representative Bradley J. Wilcox, and Steward Joseph Moore, a therapist at Respondent Employ- ers' San Francisco facility - testified to their communica- tions with employees during negotiations for collective- bargaining agreements. Collectively, their testimony por- trayed a continuous interchange between Respondent Union and all employees in the therapy department, including physical therapists, during the negotiating pro- cess. Thus, Moore testified that, when he had participated on behalf of Respondent Union in the negotiations for the 1970 agreement, he had solicited suggestions from all employees in the therapy department, had conducted informal meetings during negotiations to advise all employ- ees, including therapists, of the progress of the negotiations and, following all negotiations, had distributed copies of newly negotiated agreements to all therapy department employees, including physical therapists. Similarly, Cooper testified that during the period he had served as steward at the Vallejo facility, from 1966 or 1967 to late 1969 or early 1970, he had always made stacks of agreements available on the therapy department coffee table and, additionally, had informed therapists during negotiations of what had been transpiring, holding meetings following negotiations which therapists had attended. Wilcox, who had served as steward at Respondent Employers' Sacramento facility from approximately 1972 until 1974, contended that he had conducted departmental proposal meetings prior to negoti- ations and claimed to have spoken to all therapists regarding negotiations. He further asserted that he had left sufficient copies of notices and other material with the receptionist for distribution to all therapy department employees, including therapists. Yet, this portrait of continuous interchange between Respondent Union and all therapists concerning the negotiating process is flawed in several respects. Thus, collectively, these three witnesses identified no more than one therapist with whom such communications had taken place. And, the therapist who was identified was Joan Mason, a member of Respondent Union and, accordingly, a conceded member of the bargaining unit for which Respondent Union was the representative. By contrast, the 3 Although Geraldine Williams, a member therapist at Sacramento during the period that Wilcox served as steward there, did testify that the receptionist had posted and distributed Respondent Union 's notices and that she had attended Respondent Union's meetings, she made no reference to Wilcox and she did not corroborate his descriptions either of prenegotiation meetings or of conversations with therapists concerning negotiations. The only other therapist called by Respondents was Kit Soo However, as she worked at Respondent Employers' Oakland location, she was in no position General Counsel called six therapists from the San Francis- co facility, one from Vallejo, and one from Sacramento, all of whose tenure overlapped that of the periods when Moore, Cooper, and Wilcox, respectively, had been serving as stewards at those locations. Not one of these eight therapists corroborated the three officials of Respondent Union concerning the purportedly continuous interchange of information during negotiations. For example, though Niles Carlson, who had worked at Vallejo since 1947, conceded that he had participated in several discussions with Cooper regarding Respondent Union, he testified that he could recall none that were of any import and he denied categorically that he had ever been contacted by Respon- dent Union concerning negotiations prior to the communi- cations arising from the agreement at issue in the instant case. To like effect was the testimony of Carol Waterbury, who had been working at Respondent Employers' Sacra- mento facility for 4 years prior to the hearing and, consequently, whose tenure overlapped at least a portion of that of Wilcox as a Sacramento steward. All of these witnesses testified during the General Counsel's case-in-chief and their testimony, with the exception of that by Carlson relating to the extent of his discussions with Cooper, was clearly known to Respon- dents by the time they commenced their cases-in-chief. Yet, not only did the three officials of Respondent Union not identify any of the therapists, save Mason, with whom they had assertedly communicated regarding negotiations, but not one employee - nonmember therapist, member therapist or therapy department employee other than therapist - was called to corroborate the assertions of these three witnesses. "The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause." 2 Wigmore, Evidence 285, p. 162 (3d ed. 1940). See also International Association of Bridge, Structural and Ornamental Ironwork- ers, Local 600 (Bay City Erection Company, Inc.), 134 NLRB 301, 306, fn. 11(1961) 3 The nonproduction of corroborating testimony for these three witnesses was particularly significant in light of their obvious attempt while testifying to buttress both their own reliability as witnesses and Respondents' defense. For example, in an effort to secure a fmding that occupational therapists had been included historically in the bargaining unit, Moore testified, initially, that he had negotiated on behalf of this classification of employee. Then, apparently alerted by the tenor of the questioning, he waffled when asked if he had negotiated wage rates for occupational therapists, first replying "I understand that whatever benefits that we received on that - for that time, that all the therapists received it also," and then answering "I can't say specifically." Ultimately shown that no wage rates for occupational therapists appeared in the 1970 contract, to corroborate Respondent Union's officials concerning the asserted com- munications at San Francisco, Vallejo, and Sacramento. Significantly, while Soo testified that she had received material distributed by her shop steward and had read notices posted by Respondent Union, she made no claim that her shop steward had distributed similar material to nonmember therapists and she conceded that the notices which she had read had been posted at the Oakland hospital, while no such notices had been posted at the Piedmont building where the therapy department for Oakland is located. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moore retreated completely when asked again if he had negotiated wage rates for occupational therapists in 1970: "If they weren't in the department, no. I can't say that I did. It's been a long time ago. I can't say I did or I didn't." To like effect was the situation with Cooper, who testified that at Vallejo "we had aides in the department and I also handled grievances for those people." Yet, Respondent Employers' coordinator of patient services, Margaret Knott, testified that, aside from a receptionist who has been classified as an aide, there have been no aides employed at Vallejo because the duties of aides, assistants, and techni- cians have been performed by students from the graduate in-service training program conducted at that facility. Cooper also claimed to have processed grievances arising from yellow slips of paper which Knott purportedly used as disciplinary notices: "whenever you got a white piece of paper, it was okay; but if you got a yellow sheet of paper, you were in trouble." Yet, Knott denied ever using yellow slips of paper exclusively for disciplinary purposes and, instead, testified that it has been her practice to transmit instructions concerning patient treatment on slips of paper, some of which have been yellow in color. Indeed, in an apparent effort to bolster his own credibility by elevating his employee status while employed at Vallejo, Cooper asserted that he had been an assistant physical therapist and only after Knott had testified that he had been classified as an attendant or pusher did he resume the stand and, grudgingly, concede that fact .4 I do not credit Moore, Cooper, and Wilcox regarding their asserted communications with therapists during negotiations. Rather, I find that Respondents have failed to produce evidence sufficient to establish that it was their intent to include nonmember therapists in the bargaining unit represented by Respondent Union. There is no evidence showing discussions during negotiations to that effect, nor is there evidence of a specific agreement that the bargaining unit would encompass nonmember, as well as member, therapists. The evidence, to the contrary, does show that Respondent Employers have been aware for over 20 years that the therapists did not desire representation and, additionally, did not desire representation by the same labor organization representing nonprofessional employ- ees. Any indicia of intent to include nonmember therapists that could be derived from uniformity of benefits provided all therapists is dispelled by evidence which tends to show that Respondent Employers follow a policy of parity of benefits and by further evidence that benefits negotiated with Respondent Union have been extended by Respon- dent Employers to other employees who are concededly not represented by Respondent Union. There is no credible evidence sufficient to infer an intent to include nonmember therapists by virtue of the manner in which the negotiating process was carried out. Therefore, I find that the factor of intent is not sufficient to dispell the plain wording of the exception clause which has appeared in Respondents' successive collective-bargaining agreements prior to the agreement challenged in the complaint. J While such a misstatement might appear to have been mere inadver- tence, it should be kept in mind that Cooper occupies a significant position with Respondent Union and, presumably, would well appreciate the t 4. The practice of the contracting parties In focusing on the practice of the contracting parties, inquiry is directed to ascertaining whether the day-to-day operations establish that the terms and conditions of the collective-bargaining agreements were applied to all thera- pists, without regard to their lack of membership in Respondent Union. Several areas merit consideration. First, while there have always been at least some therapists who have been members of Respondent Union, no evidence was presented to show that member therapists represented a significant percentage of the total comple- ment of therapists. Wilcox claimed that Respondent Union's membership records had been stolen by the computer firm which had maintained them. He did not, however, explain what purpose could be served by such a theft, from the computer firm's point of view, nor was any corroborative evidence presented concerning the purported theft. Moreover, no explanation was advanced as to why Respondent Employers did not produce this information since, based upon Trischan's testimony regarding the division of therapists, for payroll purposes, into those who do and those who do not pay dues, seemingly such information would have been available. Under these circumstances, and particularly in light of Wilcox's general attitude of attempting to fortify Respondents' defense, it appears to be a warranted inference that Respondent Union never represented a significant number of therapists. This conclusion is buttressed by the fact that only two therapists who appeared were members of Respondent Union prior to execution of the 1974 agreement and only one other therapist (Mason) was specifically identified as having been a member of Respondent Union prior to that time. By contrast, Soo acknowledged that she had been the only member therapist at Oakland, Wilcox conceded that there had never been more than two member therapists at Sacramento in December 1974, Moore testified that only Mason had been a member therapist at the San Francisco facility, and the General Counsel presented 36 therapists who testified that they had never designated nor selected Respondent Union to represent them. Therefore, I con- clude that at no point have any significant number of therapists been members of Respondent Union. This, of course, is a valid factor to consider in appraising whether Respondent Union had been serving as the representative of all therapists prior to December 1974. Emanuel Birnbaum and John W. Jones d/b/a Silver Lake Nursing Home, 178 NLRB 478 (1969); Paramount Press, supra. Second, Respondents' record of enforcement of the maintenance of membership portion of article III is relevant for, so far as the record discloses, there has never been a time when Respondent Union even sought to enforce its right to insist upon compliance with that provision where there has been a termination of member- ship by a therapist. Yet, such situations have arisen. For example, both Albert Brady, who had commenced working for Respondent Employers in 1968 as an LVN, and Benda Braathun, who had commenced working in 1972 as a importance of job classifications, particularly where they are listed in Respondents' agreement. KAISER FOUNDATION HOSPITALS, ET AL. physical therapist assistant, resigned from Respondent Union upon being reclassified as physical therapists. There is no evidence that either of Respondents ever interposed the maintenance-of-membership provision as an objection to their resignations. Similarly, Joanne Keaney had joined Respondent Union in 1968, when working as a receptionist for Respondent Employers. Following her termination, she was rehired by Respondent Employers in 1973 as a physical therapist and dues were deducted from her first few paychecks. Yet, when she complained to her supervisor about the deductions, they ceased and she paid no dues thereafter to Respondent Union. As with Brady and Braathun, neither Respondent protested Keaney's failure to continue paying dues or maintaining her membership and no explanation was advanced for the absence of a protest. While the provision itself does require that Respondent Union refer a "competent employee" whenever termination of an employee is sought for failing to comply with the maintenance-of-membership provision, Respondents have not shown that at the time of these three resignations Respondent Union had been unable to obtain a "compe- tent" replacement or, at the very least, that its inability to furnish such a replacement formed the basis for its failure to invoke that provision of the agreement against the resigning members. In these circumstances, the record shows only that Respondents' contracts have imposed a maintenance-of-membership requirement for therapists, that at least three therapists did resign their membership, and that Respondents took no action against them for resigning, notwithstanding the presence of contractual machinery permitting their replacement. Clearly, this evidences a failure to apply the collective-bargaining agreements to therapists. See Silver Lake Nursing Home, supra. Third, in a somewhat related vein to the immediately foregoing factor, there is evidence that, on at least one occasion, a presumably "competent employee" was avail- able to Respondent Union, but no action was taken to preserve his availability. Respondent Union's business representative for San Francisco County and the Northern Peninsula, Jeff Greendorfer, testified that approximately 2 years prior to the hearing - shortly before Braathun, a San Francisco therapist, ceased maintaining her membership - a therapist, he was not sure if occupational or physical, sought Respondent Union's aid in obtaining employment. Without, so far as the record shows, recording the thera- pist's name and address for future reference, Greendorfer simply recommended that the therapist contact personnel in Respondent Employers' San Francisco and South San Francisco facilities for employment. In doing so, Greendor- fer acknowledged that his action had been "more in the nature of explaining to someone how to go about being employed as opposed to referral to fill any sort of vacancy." This action by Greendorfer shows that Respondent Union was not even making an effort to compile a list of "competent" personnel to enforce its maintenance -of-mem- bership provision. Moreover, like the situations in which the Board has found that a labor organization has not been representing employees where, in part, that labor organiza- tion ceases processing grievances and merely refers the grievants to their employers for direct resolution of the 475 grievances, International Engineering Works, Inc., 49 NLRB 1129, 1131 (1943), here Respondent Union made no effort to serve as a potential representative of the therapist who spoke with Greendorfer. Instead, Greendorfer merely recommended that he handle his problem directly with Respondent Employers and see if the latter would agree to employ him. Fourth, three witnesses testified to their experiences when they had been newly hired by Respondent Employers. This evidence was adduced in an effort by Respondents to demonstrate that newly hired therapists were advised that they were represented by Respondent Union , but were not required to become members . An examination of the testimony shows that, while the latter was clearly shown, the former was not. Thus, Kit Soo testified that Supervisor Clint Maashoff had told her that therapists were represent- ed by Respondent Union but that she was not required to become a member, as her bargaining would be done for her in any event. Yet, Soo also testified that, upon being told that therapists were represented by Respondent Union, "I asked for the book, and I read that." Soo was hired at a time when the exception provision read as it was negotiated in 1962 and, as found above, it clearly does not state that all therapists are represented by Respondent Union . Conse- quently, if, as Soo testified, she was told no more than what she read in the contract shown her by Maashoff, then she quite clearly was not told what she testified he had said to her. Maashoff was not produced as a witness nor was the failure to do so explained. Consequently, his testimony is not available to compare with that of Soo as to what he had said to her. No other therapist from Oakland was called by Respondents and, thus, Soo's testimony cannot be com- pared against that of any other Oakland employee to ascertain if what had been said to them conformed to what she claimed had been said to her. Further, Soo herself appeared strongly sympathetic to Respondent Union and, accordingly, unlikely to say anything contrary to its interests. In these circumstances, it is not possible to find that she was told other than what the collective -bargaining agreement stated regarding the representation status of therapists ; her testimony will simply not support a finding that she had been told that all therapists were represented by Respondent Union. Geraldine Williams, the second witness to conversations regarding Respondent Union when newly hired, stated merely: "Well, when I come to work in the facility - went to work in the facility, why, I knew that it was a union house." Since she did not say what she meant by a "union house," nor that therapists were encompassed within that description, and as she did not testify to any specific remarks made by Respondent Employers' officials , it is not possible to rely on her testimony to establish that newly hired therapists had been told that they were represented by Respondent Union. Peter Edgelow testified that Margaret Knott had referred to the collective-bargaining agreement to describe the benefits that he would receive and had explained that therapists did not have to join Respondent Union. Of course, the fact that the contract was used to describe benefits does not resolve the issue presented in the instant case since the issue, as pointed out above , is whether the reason for receiving those benefits was because of 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union's representation of all therapists or because Respondent Employers have independently deter- mined to extend to nonmember therapists the benefits negotiated for member therapists. Moreover, it soon became clear that Edgelow was not certain what had been said to him by Knott : "I really don't remember whether she said [the therapists were] non-union or whether she said that I had the option of joining the Union or not." Edgelow acknowledged that, in describing the membership option, Knott had used the words of the contract , thereby leaving the situation in no clearer a state than had Soo . Significant- ly, while Knott was manifestly available as a witness, Respondents chose not to attempt to question her on what she had said to newly hired therapists. In these circumstances , I fmd that the testimony of these three witnesses - Soo, Williams, and Edgelow - concern- ing what had been said to them when they had been hired does not establish that newly hired therapists were told that they were represented by Respondent Union. Accordingly, this factor does not support Respondents' contention that, notwithstanding the wording of the exception provision of their agreements, all therapists had been treated as being represented by Respondent Union prior to December 1974. Fifth, related to the immediately preceding factor was the testimony of several witnesses concerning what they had told newly hired therapists. Initially, Edgelow testified that, after becoming a supervisor, he had told newly hired therapists that they were represented by Respondent Union, but did not have to become members. However, when this somewhat generalized description was probed during cross-examination through questions pertaining to what had been said to therapist Richard Bus, Edgelow testified that he had explained the representative status of therapists to Bus by showing him the agreement: I had a standard orientation practice that I went through, which included explaining to the therapists the salary, the process of advancement, the vacation time, sick leave; these sorts of things. And I used the Local 250 contract as my source material. And when it came to discussing the Union itself, per se, rather than these specific facts, I showed him where in the contract the Union - there was a closed shop for everyone in the department except for physical therapists, and the physical therapist had the option of joining the Union or not. Of course, the then-existing contract, which, when Bus was hired, contained the exception provision from the 1962 agreement, hardly made it clear that all therapists were represented by Respondent Union. Moreover, although Edgelow's above-quoted testimony arose in the context of what he had said to Bus, his reference to "a standard orientation practice" appears to mean that, notwithstand- ing his description of what he had said during direct examination, his specific description during cross-examina- tion is a more accurate recital of what he had told the newly hired therapists. Edgelow appeared uncertain of the distinction between representation on a members-only basis and representation of all employees without regard to membership, as illus- trated by his testimony concerning what had been said to him during his own orientation. No therapists from Hayward corroborated the generalized assertion of his direct examination that he had told them that all therapists were represented by Respondent Union . His own, more detailed, description of what had transpired during these orientation sessions makes clear that he told newly hired therapists no more than what was set forth in the agree- ments between Respondents. Accordingly, I fmd that Edgelow's testimony in this respect is not sufficient to support Respondents' contention that newly hired thera- pists were told that they were represented by Respondent Union. Nor will the testimony of San Rafael Personnel Supervisor Haleen Armijo, who testified to having told newly hired therapists that they would receive wage increases every November pursuant to the contract, but who specifically denied having discussed union member- ship with such therapists prior to 1975. Consequently, Armijo's testimony is as consistent with the General Counsel's theory that Respondent Employer was unilateral- ly extending the terms of its agreements to nonmember therapists as it is with Respondents ' theory that the benefits for nonmember therapists stemmed from Respondent Union's representation of them. Both Sacramento Director of Personnel Luann Kam- prath and Sacramento Senior Personnel Clerk Jeanne Cole laid claim to having conducted the orientation of physical therapist Carol Waterbury in 1972. Kamprath described having told Waterbury and other newly hired Sacramento therapists that there was a collective -bargaining agreement which was followed in providing benefits for therapists. However, aside from having mentioned the option of joining or not joining Respondent Union, Kamprath refrained from describing exactly what she had told Waterbury and other therapists about their status regarding Respondent Union's representation. While Cole testified that she had told Waterbury "that her benefits fell under the union contract," she admitted that she could not recall what had been said with regard to joining Respondent Union. In fact, Waterbury did agree that she had been told that her benefits were set forth in Respondents' collective- bargaining agreement. However, Waterbury further testi- fied that, based upon what Respondent Employers' officials had told her, her "understanding was that the reason that we got the benefits that we got from the administration and not from the Local 250 contract." This, of course, is precisely the point of the General Counsel' s argument. Consequently, in view of this testimony by Waterbury and in light of the indeterminate nature of that given by Kamprath and Cole, I find that the testimony of these two officials of Respondent Employers is not sufficient to support Respondents' contention that newly hired thera- pists had been advised that they were represented by Respondent Union and were included in the bargaining unit. The final witness who testified concerning statements made to newly hired therapists was Cooper, who claimed, without corroboration, that Knott had delegated the task of conducting orientations to him. Yet, when called upon during direct examination to recite what he had said during orientations, Cooper testified only that "I told them - you know, that we had a contract there under Local 250, that KAISER FOUNDATION HOSPITALS, ET AL. they had an opportunity to attend meetings , to belong if they desired to do so." Quite clearly, this is at best an invitation to join Respondent Union . It hardly constitutes a statement of representation . Though Cooper ultimately agreed that he had told newly hired therapists that, whether or not they were members, they were entitled to the contract benefits, this was in response to a question put to him on cross-examination and I am convinced that his answer was predicated less on his own recollection of events as they actually had occurred and more on his desire to shore up Respondents' case to the greatest degree possible. In any event, of itself, there is nothing in such a statement that would alert the new therapists that the benefits were the result of representation by Respondent Union as opposed to benefits which Respondent Employers had simply adopted for extension to unrepresented employees. In sum, Respondents presented a series of witnesses to support their contention that newly hired therapists had been told that they were represented by Respondent Union and were included in the contractual bargaining unit. Careful consideration of the testimony of the witnesses, as well as their demeanor, discloses that, discounting general- ized statements, their testimony concerning what had been said to the new therapists simply does not support that contention. Rather, it is virtually neutral , being as suscepti- ble of supporting the General Counsel's theory as that advanced by Respondents. The sixth area which merits consideration in appraising the contracting parties' practice involves the relationship of benefits provided by the agreements to those received by the therapists. As noted above, it is generally correct that, without regard to source, all therapists received the benefits set forth in those agreements. However , several significant exceptions do exist. For example, not one of the past agreements has provided wage rates for occupational or speech therapists, even though the exceptions provisions have mentioned these two classes of therapists, as well as the physical therapists. To explain this omission, Respon- dents argue that it resulted from the small number of employees populating each of the two classifications and that, as is the case with other sparsely populated classifica- tions, Respondents normally negotiate their wage rates on an ad hoc basis following agreement on the terms of the basic collective-bargaining agreement. The problem with this explanation, however, is that it lacks supporting evidence. Though a letter expressing agreement on the wage rates for occupational therapists was sent by Morrish to Liebes in 1975, following agreement on the contract which the General Counsel challenges in the instant ease , there is no evidence of a similar written agreement for either occupational or speech therapists for any previous contract. Respondent Employers did search their files in an effort to locate a similar agreement or letter but were unsuccessful. Apparently, Respondent Union saw no need to make a similar effort. In any event, the best that Respondent Employers' search of the files produced was a series of wage rates for occupational therapists which, the parties stipulat- ed, could not be shown to have been the product of negotiations with Respondent Union nor, in fact, even communicated to the asserted historic representative of these therapists. 477 Another example of benefits received by therapists which were not included in the parties' agreements was mileage payments for trips to patients' homes. So far as the record discloses, the therapists are the only employees who actually have need of such a benefit. Yet, while therapists have historically received mileage payments, there has concededly never been any provision for them in any collective-bargaining agreement until the one at issue in the instant case. There was really no explanation as to why it suddenly had become necessary to include a provision for such payments in the 1974 agreement and the fact that it was inserted tends to reinforce the General Counsel's argument that it was not until that agreement that the nonmember therapists, the preponderant majority of em- ployees classified as therapists, were included in the contractual unit, thereby necessitating the inclusion of a benefit which appears to have been unique as to them. Tuition and paid educational leave provided another illustration of a benefit provided to the therapists which was not included in the parties' contracts and, again, there is no evidence that any other employee classification enjoyed such a benefit. Thus, while Santa Clara physical therapist Edna Wesenburg described a form which she had com- pleted to claim tuition and salary for educational leave, Respondents did not produce the form, an explanation for the source of this benefit, nor evidence showing that it was a benefit received by employees in classifications concededly represented by Respondent Union. Consequently, the record does contain evidence that therapists received benefits not specified in the successive collective-bargaining agreements and it does not contain any evidence that those benefits, particularly the wage rates of occupational and speech therapists, resulted from Respondent Union's repre- sentation. Seventh, there is evidence that some provisions of the agreements have not been applied to therapists. Most illustrative of this factor is the maintenance -of-membership provision, discussed above. Yet another was the contractual provision for notification to Respondent Union whenever vacancies arose in classifications covered by the unit. To implement this provision, Respondents use a job requisi- tion. However, not one such requisition for a therapist of any type was produced during the hearing. While Green- dorfer claimed that they existed and that he could bring them to the hearing, neither he nor any other official of either Respondent did so. Moreover, there is no evidence that any therapist applicant was ever referred to Respon- dent Employers pursuant to a job requisition. While Wilcox testified that Respondent Employers are free to seek employees from sources other than Respondent Union and that Respondent Employers had filled other licensed positions, such as pharmacist, from such sources, he conceded that he had referred pharmacists on some occasions to Respondent Employers and there is no evidence of any classification, concededly represented by Respondent Union, for which the latter has never referred an applicant pursuant to a job requisition. Indeed, to implement this provision of the agreements , Respondent Union undoubtedly maintains a list of available employees who can be referred whenever a job requisition is received for their classification. Yet, when the therapist-applicant 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approached Greendorfer, as described above, seeking employment, there is no evidence that the latter ever made a notation of that therapist's name so that he could be contacted should a requisition for a therapist be received. Instead, Greendorfer merely recommended that the thera- pist contact Respondent Employers directly. So far as the record discloses, he then washed his hands of the matter. Thus, this factor tends to support the General Counsel's theory that only member therapists were treated as being represented by Respondent Union and thus included in the bargaining unit prior to 1974. Similarly, there is no evidence that any grievances have been filed on behalf ofnonmember therapists . Both Wilcox and Cooper testified to having done so, but inspection of their descriptions of these purported grievances undermines their assertions. Thus, while Wilcox claimed that he had been contacted by nonmember therapist Lindy Preston in 1974, he admittedly had referred Preston to Business Representative Joan Allen. As Allen did not appear as a witness, as no documentation pertaining to a grievance on behalf of Preston was proffered, and as Wilcox had no personal knowledge of what took place after he had referred Preston to Allen, this incident simply will not suffice to establish that grievances were processed on behalf of nonmember therapists. Although Cooper asserted that he had processed griev- ances on behalf of Audrey Coleman, Pirko Kolonan, and Robert Delormie while serving as steward at Vallejo, his description of these matters portrayed the incidents less as grievances than as minor complaints on which he had volunteered to help the three. No documentation was provided to corroborate his testimony that these were grievances within the meaning of that term as used in the agreements, and none of the three individuals was pro- duced to corroborate Cooper, though it was conceded that Coleman, at least, was not only working for Respondent Employers at the time of the hearing, but, in fact, was a supervisor. Knott, with whom Cooper claimed to have resolved the grievances, did appear as a witness, but did not corroborate his assertions. Finally, Cooper acknowledged that, at the time of the incidents to which he referred, Coleman and Kolonan were students or interns and it appears that this was the status occupied by Delormie as well. Yet, it was not shown that students were included in the bargaining unit, and it is doubtful that they were even employees within the meaning of Section 2(3) of the Act. Cedars-Sinai Medical Center, 223 NLRB 251 (1976). Coop- er, it should be remembered was the individual who claimed, among other matters, that yellow slips of paper issued by Knott were disciplinary notices which had given rise to protests that he had resolved. I did not credit that testimony. Neither do I credit his testimony in this area. While Moore asserted that he had spoken to all San Francisco therapy department employees, including the therapists, and had obtained their agreement to work- reduced schedules in order to prevent the layoff of one employee in that department, there is no evidence that the position thereby preserved was that of a therapist and, consequently, while the matter affected the therapists, there is no evidence that the therapists themselves "utilized their contract procedures." Silver Lake Nursing Home, 178 NLRB 478. To like effect was the testimony of Greendor- fer, who spoke to two therapists while processing a grievance, but who acknowledged that the grievance had been one filed by an aide, concededly a classification historically represented by Respondent Union . In these circumstances, there is simply no evidence that a grievance has ever been filed on behalf of a nonmember therapist and this factor is a significant consideration in appraising whether or not Respondent Union has historically repre- sented nonmember therapists . Paramount Press, supra; Silver Lake Nursing Homes, supra. Eighth, some of the testimony by Respondents' witnesses was intended to portray ongoing communications between the officials of Respondent Union and the therapists, independent of those assertedly occurring during the negotiating process, discussed above. Greendorfer testified that he had told physical therapists the same types of things that he had told all members , and Wilcox testified that he had spoken with therapists on many occasions while he had served as steward at Sacramento . Cooper and therapist Carlson discussed contract benefits frequently while the former had been at the Vallejo facility . Yet, so far as the record discloses, these conversations never rose beyond the level of shoptalk. There is no evidence that would support a finding that the substance or tenor of these conversations indicated that the therapists understood that they were being addressed as represented employees by officials of their representative. To like effect were the notices posted on behalf of Respondent Union at various facilities - though therapists, as well as other department employees may have read them, this would no more establish their inclusion in the unit than would readership of a newspaper convert the reader into a staff member of the publishing company. No evidence was adduced to show that these notices contained any material uniquely applicable to nonmember therapists or, for that matter, uniquely applica- ble to therapists. Finally, during the strike which accompanied negotia- tions for the 1973 agreement, almost all nonmember therapists not only continued to work , but many of them performed the duties of the striking employees . So far as the record discloses, Respondent Union took no issue with them for doing so, though presumably it would have at least said something were it truly representing them in the negotiations. Of course , as the General Counsel points out in his brief, at the very next contract negotiations, Respon- dent Union secured the change in article III of the agreement. The fact remains, however, that the nonmember therapists did continue working in 1973 and did perform duties normally discharged by the striking employees, without protest by Respondent Union. Two points should be considered in conjunction with the topic of negotiations : like employees concededly represent- ed by Respondent Union, all therapists received retroactive wage increases whenever such increases were negotiated and, secondly, the notices of personnel action which accompanied Carlson's increases between 1956 and 1966 attributed the increases to contract raises or addenda to Respondents' contracts. Though both items would appear to support Respondents' defense, it is puzzling why only the notices of personnel action for Carlson were produced and, KAISER FOUNDATION HOSPITALS, ET AL. 479 further, why only those notices for the period 10 to 20 years before the hearing were introduced. Seemingly, had such notices been available for other therapists and had more recent notices been available, they likewise would have been produced. Having failed to offer notices of personnel action for other therapists and having failed to offer notices for the period more proximate to the hearing, it is fairly inferrable that they did not exist. Borg-Warner Controls, etc., 128 NLRB 1035, 1044-45 (1960); Missouri Transit Company, 116 NLRB 587, 600-601 (1956), enfd. 250 F.2d 261 (C.A. 8, 1957). In any event, neither the retroactive raises nor Carlson's notices of personnel action are incon- sistent with the General Counsel's theory that, for nonmem- ber therapists, the source of their benefits was exclusively Respondent Employers' decision to implement its parity policy by extending the benefits negotiated with Respon- dent Union to employees which the latter was not repre- senting. 5. Conclusion A substantial majority of the therapists employed in December 1974 testified that they had never designated nor selected Respondent Union as their bargaining representa- tive by the time that Respondents agreed to modify article III of their successive agreements . Of itself, this evidence would not have been dispositive had Respondents, in fact, been able to demonstrate that all therapists had been included historically in the bargaining unit and that the December 1974 change was no more than an extension of the union-security provision to an already represented group of employees. However, when the clause in effect for the 12-year period prior to the 1974 change is examined, it quickly becomes apparent that the three classifications of therapists are first broadly excluded from the recognition clause and then that those therapists who become members are specifically included under the recognition clause. This pairing of exclusion and inclusion certainly makes it appear that, prior to December 1974, Respondent Union was recognized as the representative solely of member thera- pists. This conclusion is not dispelled by the evidence presented by Respondents concerning their intent. The therapists have never designated Respondent Union as their represen- tative. No evidence was presented of specific discussions during negotiations regarding the status of nonmember therapists or regarding the inclusion of all therapists in the unit, without regard to membership. Respondents' witness- es were unable to explain what had taken place during the negotiations which had led to formulation of the wording of article III during the 1962 negotiations and, more impor- tantly, no explanation was advanced to explain the reason for using that wording. It was conceded that Respondent Employers were aware that therapists did not desire representation. Respondent Employers' policy of parity of benefits for similarly situated employees precludes any inference as to intent regarding therapist representation based upon the fact that member and nonmember thera- pists receive identical benefits. Respondent Employers acknowledge that the benefits which it has negotiated with Respondent Union have been extended to some employees not represented by the latter and, so far as the record discloses, without the latter's knowledge. Finally, the therapists have not participated directly in negotiations and there is no substantial credible evidence that they have participated indirectly in the negotiating process, through consultations and meetings with Respondent Union's representative. Therefore, the evidence pertaining to the intent of the contracting parties falls far short of overcom- ing the language of the exclusion provision of article III which appeared in Respondents' agreements for the 12-year period preceding the 1974 agreement. Nor if the evidence of practice of the contracting parties sufficient to establish these points. At no point have a significant number of therapists been members of Respon- dent Union and at no time, so far as the record discloses, has enforcement of the maintenance-of-membership clause been undertaken, despite the evidence of at least three resignations from membership. In fact, there has been no showing that Respondent Union even made an effort to compile a list of "competent" therapists incidental to enforcement of that provision and there is evidence that, on one occasion, an opportunity to include a therapist on such a list was disregarded. The testimony presented concerning what had been told to newly hired therapists was so general, indefinite, and untrustworthy as to preclude a finding that newly hired therapists had been told that they were represented by Respondent Union without regard to their membership status. Several benefits, including the wage rates for occupational and speech therapists, were not even mentioned in Respondents' contracts and, conversely, no effort has been made to apply some provisions of the agreement to the therapists. There is no evidence that any grievance has ever been filed on behalf of a nonmember therapist. Finally, almost all therapists ignored Respondent Union's 1973 picket line and many of them performed the work of striking employees, without protest by Respondent Union and without Respondent Union making any effort to deter them based upon an assertion that they, too, were represented in the 1973 negotiations. In these circumstanc- es, it can hardly be said that Respondents' practice demonstrates that nonmember therapists were considered to be a part of the bargaining unit. It could, of course, be argued that my analysis is overly detailed and picky. Yet, it is based upon the evidence which Respondents chose to present. It was Respondents who chose the language which had appeared in article III. It was Respondents who had available the witnesses and the opportunity to explain the discussions and intent underly- ing the choice of that language. It was Respondents who had available the records and witnesses which would have served to dispell all doubt as to the application of their successive agreements to the therapists, had that been the fact. Indeed, as was pointed out during the hearing, even the witnesses called by the General Counsel had been available to Respondents for pretrial interview as to the practice under these agreements. Yet, notwithstanding these circumstances, Respondents chose to present a paucity of records and only the vaguest of testimony to overcome contractual language which specifically excluded the therapists from the unit for which Respondent Union has been recognized and which then included in that unit only those therapists who become members of Respondent 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. In these circumstances, Respondents have simply failed to produce the evidence which should have been adduced to support their defense and the only reasonable conclusion which emerges from this record is that it has not been shown that nonmember therapists have been included historically in the bargaining unit . Paramount Press, supra,; Silver Lake Nursing Home, supra. Therefore, I find that, in December 1974, Respondents added the nonmember therapists - which represented virtually all of the therapists - to their bargaining unit, without a majority of those employees having designated Respondent Union as their bargaining representative and after a substantial bargaining history during which it has not been shown that the therapists were included in the unit. "The fact that the [physical , occupational and speech therapists ] have historically been excluded from the .. . bargaining unit at [Respondent Employer's facilities] means, of course, that they are entitled at this point to a voice in whether or not they desire to be represented by a labor organization ." Levine Hospital of Hayward Inc., 219 NLRB 327,328 (1975). B. Whether the Therapists are Professional Employees Entitled to a Separate Determination as to Their Addition to a Unit of Nonprofessional Employees 1. Status of therapists as professional employees To be employed by Respondent Employers, a physical therapist must be licensed by the State of California. That, in turn, requires graduation from a school whose program satisfies the requirements set forth in the California Business and Professions Code and successful completion of written, oral, and practical examinations. Thus, physical therapists employed by Respondent Employers have bach- elor of arts degrees in physical therapy and are licensed by the State. They are members of the American Physical Therapy Association, a professional organization for physi- cal therapists, and participate in ongoing training and educational programs conducted under the auspices of that association . They work with both inpatients and outpa- tients . Upon receipt of a doctor's prescription or order for a patient, they independently evaluate the patient, test muscle strength, neurological performance, deficits, and physical abilities, and measure joint range of motion. Based upon the results of this evaluation, the therapist then, independently, prepares a written treatment plan, tailored to the needs of the patient. In carrying out the plan, physical therapists use ultrasound, diathermy, electrical stimulating, weights, and traction equipment. After each session with a patient, the therapist prepares a written progress report, both for the patient's medical file and for review by the patient's physician. Respondent Employers employ one speech therapist or speech pathologist, Betty McDowell, who works at the Vallejo rehabilitation center. McDowell has a bachelor's S By way of amplification, when the parties had been unable to agree upon certain provisions of the agreement, they submitted these matters, including Respondent Union's proposal for modification of art. III, to a nonbinding factfinding proceeding and on December 11, 1974, the factfin- der, based upon representations that all therapists had been included in the degree in communications disorders and has completed work on a master's degree and for a teaching credential, as well as having participated in clinical training. She possess- es a speech pathology license issued by the State of California Board of Medical Examiners and is a member of the American Speech and Hearing Association, which sponsors conferences and meetings designed to provide ongoing education. The patients whom McDowell treats, for the most part, have suffered strokes or brain injuries affecting their voices. They are referred to her by a doctor and, working in a separate room at Vallejo, she indepen- dently evaluates the language skill of the patient and independently prepares a plan of speech therapy suited to the needs of the patient. She then carries out that plan, using, as she sees fit, such equipment as a tape recorder, an electrolarynx, and an audiometer. She maintains records of her patients when she works with them and she, alone, makes decisions regarding the discontinuance of speech therapy for patients. At the time of the hearing, Respondent Employers employed two occupational therapists. As required by Respondent Employers, both are registered with the American Occupational Therapy Association, which re- quires a bachelor of science or arts degree in occupational therapy and a minimum of 6 months' clinical training for registration. The association sponsors continuing education through conferences and workshops. The occupational therapists work with physically disabled patients upon receipt of a doctor's order. They independently evaluate the patient and, like the physical and speech therapists, make an independent determination as to the appropriate thera- py goals, deciding which skills are to be developed. The occupational therapists follow their patient plans, making their own decisions as to which equipment to use and, normally, as to the duration of the therapy program. They prepare periodic progress reports which become part of the patients' files. As the foregoing facts demonstrate that the physical, speech, and occupational therapists have met specialized educational requirements and possess advanced degrees of knowledge and, further, demonstrate that they perform intellectual and varied work, requiring consistent exercise of discretion and subjective judgment, I find that they are professional employees within the meaning of Section 2(12) of the Act. The Mason Clinic, 221 NLRB 374, 377 (1975). 2. The effect of adding professional employees to a unit including nonprofessional employees As found above, in December 1975 the contracting parties agreed to modify article III so that it would include nonmember physical, speech, and occupational therapists - almost all of the employees in these three classifications - in the bargaining unit.5 Although these professional employees had been historically excluded from the bargain- ing unit, no election was afforded them nor did a majority of them indicate in any other manner either a desire to be unit historically, recommended that the proposal be adopted. Such a recommendation, to the extent that it determines the scope of the unit, is not binding on the Board . See Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Morgan and Brother- Manhattan Storage Co., Inc.), 223 NLRB 527 (1976), and cases cited therein KAISER FOUNDATION HOSPITALS, ET AL. 481 represented by Respondent Union or a desire to be included in a unit with the nonprofessional employees whom Respondent Union had historically represented. On March 13, 1975, Respondent Employers distributed or posted an interoffice memorandum to all therapists, advis- ing them of their obligations under the now modified article III and attaching a copy of that article, including the portion providing for replacement of employees who failed to observe the financial requirements. On May 13, 1975, Respondent Union made the latter crystal clear when its secretary-treasurer, Timothy J. Twomy, authored a letter to all therapists, stating, inter alia: I hereby demand that you meet your obligation under Article III, Section 3, and remit the appropriate dues or fees within 15 days. Your failure will result in our notification to Kaiser Hospitals of your failure to comply with this section, demanding your termination. Consequently, the situation presented in the instant case is virtually identical to that which occurred in St. Luke's Hospital Center, 221 NLRB 1314 (1976), where a violation was based upon efforts to enforce a union-security clause in a contract combining professional with nonprofessional employees in the unit, without having accorded the former an opportunity to vote on whether they desired to be included. As the situation is the same in the instant case, so also would be the results. C. Whether Section 10(b) of the Act Precludes Finding a Violation Against Respondent Employers The violations found above are all rooted in the expan- sion of the bargaining unit in December 1974 to include all therapists. Consequently, it was the act of recognition which constitutes the unlawful act and all conduct which followed - the formulation of the precise language for the union-security clause, the execution of the agreement, the implementation and enforcement of the agreement - becomes unlawful only in light of that act of recognition. Thus, the 6-month limitation of Section 10(b) of the Act commences in December 1974. Paper Products and Miscel- laneous Chauffeurs, Warehousemen and Helpers, Local 27 (Combined Container Industries), 209 NLRB 883 (1974). While this poses no problem for the charge in Case 20-CB- 3483, it means that the charge in Case 20-CA-10516, which was not served until August 13, 1975, clearly does not encompass events occurring in the month of December 1974. Nor does the Charging Party's July 3, 1975, commu- nication to the General Counsel, appealing the dismissal of Case 20-CB-3483 and seeking "to amend said charges to include charges of unfair labor practices against" Respon- dent Employers, assuming that this communication serves as a charge under the Board's Rules and Regulations, Series 8, as amended, Sections 102.10 through 102.14 and 102.33 .6 This being the case, the charge against Respondent Em- ployers is barred under Section 10(b) of the Act. The 6 I reject the Charging Party 's argument that by naming Respondent Employers in Case 20-CB-3483 and by serving them with a copy of that charge, therefore, Case 20-.CB-3483 serves as a charge against Respondent Employers. That charge is clearly limited to Respondent Union and, though it attributes unlawful conduct to the latter, it makes no assertions of any underlying unfair labor practices occurred more than 6 months prior to the filing of both the July 3, 1975, letter and the charge in Case 20-CA-10516. All conduct occurring during the 6 months immediately prior thereto was lawful on its face and could only be held unlawful by reliance on the fact of the unlawful expansion of the unit in December 1974. In this posture, the charge against Respondent Employers can only be held time-barred under Section 10(b) of the Act. Combined Container Industries, supra. At the commencement of the hearing, in responding to Respondent Employer's motion to dismiss Case 20-CA- 10516, counsel for the General Counsel pointed out that consideration should be accorded to the possibility that "the employees affected did not know and had no way of knowing" about Respondents' agreement to expand the unit to include all therapists. However, there is no evidence that Respondents undertook any effort to conceal this fact. Moreover, by the end of January 1975, it was abundantly clear to virtually every one of the therapists who appeared in this hearing what had occurred, although they might not have completely understood the terms of the union-security clause to which they would be subject. Consequently, there was ample time for them to have filed a timely charge against Respondent Employers just as was done against Respondent Union. That they failed to do so is hardly justification for attempting to obtain an exemption from the accommodation which Congress has struck between the competing factors of employee self-determination and of burying stale disputes. Local Lodge No. 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411,428 (1960). Therefore, I shall recommend that Case 20-CA-10516 be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union set forth above, occurring in connection with the operations of Respondent Employers set forth 3in section 1, above, 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 of commerce. CONCLUSIONS OF LAW 1. Kaiser Foundation Hospitals, The Permanente Med- ical Group, and Kaiser Foundation Health Plan are a joint employer within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Institutional Workers Union, Local 250, is a labor organization within the meaning of Section 2(5) of the Act. 3. By accepting exclusive recognition as the representa- tive of all physical therapists, speech therapists, and unlawful conduct on the part of Respondent Employers and could hardly serve as notice to Respondent Employers, Respondent Umon, or the Board of assertions of unlawful conduct by any person other than Respondent Umon. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occupational therapists employed by Kaiser Foundation Hospital, The Permanente Medical Group, and Kaiser Foundation Health Plan in their Northern California facilities, at a time when a majority of these professional employees had not designated Respondent Union as their collective-bargaining representative, had not been included historically in the bargaining unit for which Respondent Union has served as the representative , and had not been afforded an opportunity to express a choice as to whether they wished to be included in a unit with nonprofessional employees, Respondent Union has violated Section 8(b)(1)(A) of the Act. 4. By entering into a collective-bargaining agreement with Kaiser Foundation Hospitals , The Permanente Medi- cal Group, and Kaiser Foundation Health Plan, which required all therapists to either join and remain a member of Respondent Union or alternatively pay a monthly fee equivalent to the established monthly dues of Respondent Union, Respondent Union thereby violated Section 8(bX2) of the Act. 5. By threatening to cause Kaiser Foundation Hospi- tals, The Permanente Medical Group, and Kaiser Founda- tion Health Plan to discharge physical therapists, speech therapists, and occupational therapists for failure to either become and remain members of Respondent Union or to pay a monthly fee equivalent to monthly dues , Respondent Union thereby violated Section 8(b)(2) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The charge in Case 20-CA- 10516 alleges conduct occurring outside the 6-month limitation period prescribed in Section 10(b) of the Act. THE REMEDY Having found that Respondent Union has engaged in, and is engaging in, certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. In order to dissipate the effects of Respondent Union's unfair labor practices, I shall recommend that it be ordered to cease maintaining or giving effect to its current recogni- tion and the 1974-75 collective-bargaining agreement with Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan to the extent that the recognition and agreement covers physical thera- pists, speech therapists, and occupational therapists, or any modification, extension, renewal, supplement, or successive agreement, until such time as Respondent Union shall have been certified by the Board as the exclusive representative of the employees in question. As shown above, on May 13, 1975, Respondent Union threatened to seek the termination of therapists who failed to tender the equivalent of monthly dues pursuant to the union-security clause contained in the collective-bargaining agreement which emanated from Respondent Union's acceptance of unlawful recognition as the bargaining representative of all therapists. Prior to May 13, 1975, a r In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec 102 48 substantial number of therapists protested, in writing, their addition to the unit for which Respondent Union had been serving as the bargaining representative . Following receipt of the letter, at least eight therapists accompanied their tender of fees with letters protesting strenuously the need to make such payments. In these circumstances, Respondent Union's conduct, while not so extreme , is similar to that which occurred in Haven Manor Health Related Facility, 226 NLRB 329 (1976). That is, the therapists were coerced into paying these fees initially and into continuing to pay these fees, or, alternatively, into becoming members of Respondent Union and remaining members of Respondent Union, depending upon which of the alternatives presented by the collective-bargaining agreement were chosen by the individual therapists, as a result of Respondent Union's coercion. Accordingly, I shall recommend that all dues and fees received by Respondent Union pursuant to the December 1974 agreement from physical, speech, and occupational therapists be returned, with interest at the rate of 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER? Respondent Union, Hospital and Institutional Workers, Local 250, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Continuing to accept exclusive recognition as the representative of physical therapists, occupational thera- pists, and speech therapists employed at Northern Califor- nia facilities of Kaiser Foundation Hospitals, The Perman- ente Medical Group, and Kaiser Foundation Health Plan or entering into any collective-bargaining agreement affect- ing those employees, unless and until it has been duly certified by the National Labor Relations Board as the exclusive bargaining representative of a unit including physical therapists, speech therapists, and occupational therapists. (b) Maintaining or giving effect to the collective-bargain- ing agreement of December 1974 with Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, or to any modification, extension, renewal, supplement, or successive agreement thereto, or to any checkoff cards executed pursuant to said contract to the extent that they pertain to physical therapists, speech therapists, and occupational therapists. (c) Maintaining, enforcing, or attempting to maintain or enforce in any manner the union-security clause of the aforementioned collective -bargaining agreement with re- spect to physical therapists, speech therapists, and occupa- tional therapists of Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, who have refused to comply with said clause. (d) Including in any collective -bargaining unit consisting of nonprofessional employees, any professional employees, 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. KAISER FOUNDATION HOSPITALS, ET AL. including physical therapists, speech therapists, and occu- pational therapists, who have not indicated a desire to be represented in a bargaining unit with nonprofessional employees. (e) In any other manner restraining or coercing employ- ees in the exercise of the rights guaranteed them in Sections 7 and 9(b)(1) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw, rescind, and give no further effect to any notice, memorandum, letter, or statement which can reasonably be construed as maintaining or enforcing, or attempting to maintain or enforce, the union-security clause of the December 1974 agreement with respect to the physical therapists, speech therapists, and occupational therapists who have refused to comply therewith. (b) Reimburse all physical therapists, speech therapists, and occupational therapists for dues or for fees equivalent to dues paid by or withheld from them in the manner provided in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary or useful to compute the backpay set forth in "The Remedy" section of this Decision. (d) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent Union's authorized representative, shall be posted by Respondent Union immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to ensure that said notices are not altered, defaced, or covered by any other material. (e) Mail to the Regional Director for Region 20, signed copies of said notices for posting by Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by Respondent Union's authorized representative, shall be returned forthwith to the Regional Director. (f) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that Case 20-CA-10516 be and hereby is, dismissed. APPENDIX 483 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT continue to accept exclusive recogni- tion as the representative of physical therapists, occupa- tional therapists, and speech therapists employed at Northern California facilities of Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, nor will we enter into any collective-bargaining agreement affecting those em- ployees unless and until we have been duly certified by the National Labor Relations Board as the exclusive bargaining representative of physical therapists, speech therapists, and occupational therapists. WE WILL NOT maintain or give effect to the collective- bargaining agreement of December 1974 with Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, nor to any modification, extension, renewal, supplement, or suc- cessive agreement thereto, nor to any checkoff cards executed pursuant to said contract to the extent that they pertain to physical therapists, speech therapists, and occupational therapists. WE WILL NOT maintain, enforce, or attempt to maintain or enforce, in any manner the union-security clause of the aforementioned collective-bargaining agreement with respect to physical therapists, speech therapists, and occupational therapists of Kaiser Foun- dation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, who have refused to comply with said clause. WE WILL NOT include in any collective-bargaining unit consisting of nonprofessional employees, any professional employees, including physical therapists, speech therapists, and occupational therapists, who have not indicated a desire to be represented in a bargaining unit with nonprofessional employees. WE WILL NOT in any manner restrain and coerce employees in the exercise of rights guaranteed them in Section 7 and 9(b)(1) of the Act. WE WILL withdraw, rescind, and give no further effect to any notice, memorandum, letter, or statement which can reasonably be construed as maintaining or enforcing, or attempting to maintain or enforce, the union-security clause of our December 1974 agreement with Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan insofar as they pertain to physical therapists, speech therapists, and occupational therapists who have re- fused to comply therewith. 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse all physical therapists, speech Permanente Medical Group, and Kaiser Foundation therapists, and occupational therapists for dues or fees Health Plan. equivalent to dues paid by or withheld from them under HOSPITAL. AND the terms of the December 1974 collective-bargaining INSTITUTIONAL WORKERS agreement with Kaiser Foundation Hospitals, The UNION, LocAL 250