Green Oak Manor

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Faye Nursing Home, Inc., d/b/a Green Oak Manor adopt his recommended Order. and Local 1199 Mass., National Union of Hospital & Nursing Home Employees, RWDSU, AFL-CIO. Case 1-CA-8697 December 16, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 28, 1974, Administrative Law Judge El- bert D. Gadsden issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and supporting briefs, including a brief which he had filed with the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions' and briefs and has decided to affirm the rulings, findings,' and conclusions3 of the Administrative Law Judge and to The General Counsel 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 credibil- ity 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. 2 In asserting jurisdiction herein, the Administrative Law Judge relied solely on the Board's nonretail standard. Our acceptance of jurisdiction herein is based, rather, on the admitted allegations of the complaint that Respondent meets our standards for assertion of jurisdiction over proprie- tary nursing homes. Thus, the complaint alleged and Respondent's answer admitted that Respondent's annual volume of business is in excess of $100,000. University Nursing Home, Inc., 168 NLRB 263 (1967). 3 We note the apparently inadvertent errors of the Administrative Law Judge in stating in sec. III,A, of his Decision that the Union was certified as the bargaining representative of Respondent's employees rather than, those of its predecessor, Green Oak Manor, Inc., and in sec. III,B, thereof, that a bargaining session was held on October 10. These errors, however, do not affect our decision. We note that the Administrative Law Judge's statement of legal principles quoted immediately following his citation of Celanese Corporation of America, 95 NLRB 664 (1951), and Laystrom Manufacturing Co., 151 NLRB 1482 (1965), in the analysis portion of his Decision, does not appear in either of those Board cases as he asserts, but, rather, emanates from the court's decision in Lodges 1746 and 743, International Association ofMa- chinists and Aerospace Workers, AFL-CIO [ United Aircraft Corporation] v. N.L.R.B., 416 F.2d 809,811 (C.A.D.C., 1969). See also Member Kennedy's dissent in Automated Business Systems, a Division of Litton Business Sys- tems, Inc., a. Subsidiary of Litton Industries, Inc., 205 NLRB 532 (1973); enforcement denied 497 F.2d 262 (C.A. 6, 1974). Furthermore, the Administrative Law Judge erred in stating the govern- ing Board law to be that, after an employer establishes objective grounds for doubting the union's continuing majority status, "the burden of going for- ward with the evidence shifts to the General Counsel to prove that, on the critical date . . . the Union in fact represented a majority of the employees." This statement is not an accurate reflection of the Board majority's position, which is clearly set forth in Automated Business Systems, supra; and Bar- tenders, Hotel, Motel and Restaurant Employers Bargaining Association of Pocatello, Idaho and its Employer-Members, 213 NLRB No. 74 (1974). ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board. adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. Nevertheless, we agree with the Administrative Law Judge's dismissal of the complaint here. For the record amply supports his findings that Respon- dent's withdrawal of recognition and refusal to bargain was based on suffi- cient objective considerations to support a serious doubt of the Union's continued majority status and that, therefore, no violation of Sec. 8(a)(5) of the Act has been established. In these circumstances, Members Fanning and Penello consider it wholly immaterial whether or not the Union in fact continued to enjoy majority support among the unit employees. See United Supermarkets, Inc., 214 NLRB No. 142 (1974), fn. 10. Chairman Miller, on the other hand, although entertaining some doubts in this area, finds it unnecessary in this case to decide whether the burden shifted to the General Counsel since the General Counsel, in any event, made no attempt to prove that the Union in fact retained majority status. In agreeing with the Administrative Law Judge that Respondent did not act unlawfully when it withdrew recognition and declined to bargain with the Union, we do not rely significantly on the fact that Respondent also filed an RM petition. The mere filing of such a petition is not evidence of an employer's good faith. San Luis Obispo County and Northern Santa Barbara County Restaurant and Tavern Association, 196 NLRB 1082, 1086 (1972). DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge of unfair labor practices filed on November 17, 1972, by Local 1199 Mass., National Union of Hospital & Nursing Home Employees, RWDSU, AFL-CIO, the Charging Party, herein called the Union, against Faye Nursing Home, Inc., d/b/a Green Oak Manor, herein called the Respondent, the General Counsel for the National Labor Relations Board issued a complaint against Respondent on March 29, 1974, alleging that Respondent has refused to bargain in good faith with the Union by refusing to meet with and/or bargain with the Union on and subsequent to November 13, 1972, in viola- tion of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent timely filed an answer denying the alleged unlawful conduct. A hearing in the above matter was held before me at Bos- ton, Massachusetts, on May 30, 1974. A brief has been re- ceived from counsel for the Respondent and has been care- fully considered. Upon the entire record in this case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts, 215 NLRB No. 112 GREEN OAK MANOR with its principal office and place of business at 947 North Main Street in the city of Brockton and Commonwealth of Massachusetts (herein called the Brockton location), where it is now and continuously has been engaged in the operation of a proprietary nursing home In the course of conducting its business operations dunng the past 12 months, a represen- tative period, Respondent has caused large quantities of medical supplies, foodstuffs, and related products used by it in the operation of its proprietary nursing home to be pur- chased and transported in interstate commerce from and through various States of the United States other than the Commonwealth of Massachusetts, and the value of said pro- ducts in transit was in excess of $50,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer does not deny, and I find, upon the evidence of record that Local 1199 Mass., National Union of Hospital & Nursing Home Employees, RWDSU, AFL-CIO, is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICE A. Introduction On July 2, 1971, Local 1199 Mass, National Union of Hospital & Nursing Home Employees, RWDSU, AFL-CIO, herein called the Union, was certified to represent a unit of employees of the Faye Nursing Home, Inc, d/b/a Green Oak Manor, hereinafter referred to as the Respondent or the Home. Shortly thereafter, on March 6, 1972, the Re- spondent and the Union negotiated a collective-bargaining agreement for a period of 1 year, effective November 10, 1971, to November 10, 1972. In June 1972, during the term of the contract, ownership of the Home succeeded to the present Respondent, which thereafter recognized and adopted said contract in effect at the time. During the last few months of the existing bargaining con- tract, the Respondent and the Union met in three bargaining sessions in an effort to negotiate a bargaining contract for the future. However, during this period, on November 13, the Respondent alleges that due to an outgrowth of considerable unrest and dissatisfaction among the employees with respect to the retention of the Union as their collective-bargaining representative, Respondent did in fact refuse to collectively bargain with the Union on the grounds that it doubted the Union represented a majority of its employees. On November 13, the Respondent unilaterally terminated further bargain- ing sessions with the Union and thereafter filed an RM peti- tion for its official removal. The Union construed the Respon- dent's action as a refusal to bargain and thereafter filed such charge against Respondent on November 17, 1972.' I Hereafter, all dates will refer to the year 1972 unless specified otherwise, and the facts set forth above are undisputed in the record Issues 659 The principal issues are whether the Respondent had suffi- cient objective considerations on November 13, 1972, upon which to support a good-faith doubt that the Union still enjoyed its majority status subsequent to the expiration of its contract on November 10, 1972; and whether Respondent's unilateral termination of the collective-bargaining sessions on November 13 constituted a refusal to bargain in violation of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. B. Collective Bargaining and Unrest Among Employees After ownership of the Home succeeded to the present Respondent in June 1972, Respondent employed Mrs Theresa Dzialo as administrator and director of nursing in September. Director Dzialo credibly testified that she was a visiting public nurse until she was employed by Respondent September 5, 1972; that her duties included employing, dis- charging, and supervising nurses and overseeing nursing ser- vices of a 24-hour (3 shifts) service nursing home; that she works from 9 a.m to 5 p in but she sees all employees every Thursday, which is payday; that as bargaining representative for the Respondent, she received a letter from the Union on or about September 26, requesting bargaining sessions to negotiate a new contract; that she first met the union repre- sentative, Mr. Lednicky, sometime between September 2 and September 26, during which time she informed him of the many problems that were confronting the Home as a result of the unrest among the employees with respect to the Union's representation, and that, thereafter, she met and par- ticipated in the bargaining sessions with Mr. Lednicky on October 10, 18, 25, and November 10. Director Dzialo said she again advised Mr Lednicky of the pro/con union unrest among the employees dunng the bargaining session on Octo- ber 18 and also during the subsequent bargaining sessions heretofore described. Counsel for the Respondent and counsel for the General Counsel stipulated that the following named employees con- stituted an appropriate unit for bargaining at Green Oak Manor (the successor Respondent) on November 13, 1972. Name Date Employed Still Employed Left Employ Frances Rosario 4/27/64 Florence Reese 12/22/71 X Mary Queripil 5/10/63 X Gloria Prosper 3/29/72 11/73 Anne Paradiso 11/24/69 3/73 Marcelle Mercadante 4/28/72 Spring 1973 William Marciano 2/5/70 Early 1973 Geraldine McGuinness 5/4/72 12/26/72 Barbara Lynch 7/12/71 11/29/72 Hazel Johnson 12/13/65 12/73 Elizabeth Hacker 6/1/72 X Virginia Donahue 2/1/72 Early 1973 Mary Craig 6 /22/70 X Rosomond Chase 1/12/72 End 1973 Celia Truehart 4/4/72 1/73 Norma Teeter 1/5/72 X Mary Stevens 5/13/71 3/74 Mildred Sprague Gloria Soule Unclear 4 /24/72 X Frances Pandous 10/72 Unclear Marie Lesperance 2/10/71 X Doreen Skidmore 4/24/72 X Teresa Upton 8 /21/72 X 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In describing the nature and character of the employee unrest, Director Dzialo repeatedly testified that during Sep- tember through November, just about all of the employees at the Home had visited her office voluntarily on several occa- sions, and on their own initiative expressed their dissatisfac- tion with the Union and the consequent dissension among the employees as a result of harassment by union representatives; that, largely, the employees complained that a union steward or other union representative frequently harassed them by directing that they not do certain of their designated nursing duties or that they perform certain of such duties wrongfully, all in an effort to slow down the efficient performance of nursing services; that if said employees refused to cooperate or to comply with said directives, they were harassed by threats, telephone calls, and on one occasion, an employee was slapped by another union employee for her lack of coop- eration; and that several of said employees were harassed by threatening telephone calls at their homes and in the Home. Director Dzialo identified the following named employees as some of the employees who complained to her on several occasions about the employee unrest at the Home: Rosomond Chase, Mary E. Craig, Hazel Johnson, Barbara Lynch, Ger- aldine McGuinness, Frances Pandous, Susan Peterson, Flor- ence Reese, Doreen Skidmore, Norma Teeter, Theresa Up- ton, and other employees, some of whom are no longer employed by Respondent. All of said employees complained about the dissension among the employees and each of them expressed their dissatisfaction with the Union, and either said they did not want the Union, or they did not want any part of the Union. Director Dzialo said these complaints continued daily from early September until around December of 1972. When counsel asked Director Dzialo what had she done in response to the many complaints with respect to the unrest in the Home, she stated that when she first assumed her duties at the Home, she told all nurses what their duties were and that they must carry out those duties to the best of their ability or they would be discharged from the nursing home; and that such discharge would be based upon just cause, as far as she was concerned The witness also stated that she spoke to all of the employees and told them that there was a clause in their bargaining contract which stated that they could be discharged for just cause; that this was a nursing home and they were aware of the personnel policies, which were posted on the bulletin board on both floors; and that she would be there daily from 9 to 5 o'clock and would see to it that this work was carried out. She said she also told the employees that they were dealing with human beings at this point and not with the Union, that this was completely out of the ques- tion; that as a nurse, herself, she felt that these poor people needed the care more than the bickering, this dissension, not showing up for work and the phone calls that were coming in Mrs. Dzialo further testified that after she discharged Kathleen Day for the slapping incident which took place in September, Mr. Lednicky came into her office with Miss Day and advised her that she had no right to fire Day; and that she told him that a person who would slap or do bodily harm to some other employee might, in anger, do the same thing to a patient, that such a person certainly did not belong employed in. the Home; and that Mr. Lednicky definitely differed with her about the matter but no grievance was ever filed against her. She further stated that during that bargain- ing sessions she advised Mr. Lednicky or other union repre- sentatives that many employees did not want any part of the Union but that union representatives simply laughed at her; and that she started spending less time in the office and more time on the floors observing the actions of the employees. With respect to the prounion, conunion dissatisfaction and dissension among the employees, the witness further testified on cross-examination as follows: Q. Weren't you concerned. A. My main concern in the Nursing Home was not the Union, per se. My main concern when Mrs. Faye asked me to come to work at Green Oak were the patients, and the way they were being taken care of and this was my main and only concern in that Nursing Home at the time and it still is to this day. Q. There really weren't any problems with respect to this main concern of yours. A. There certainly was. There were many problems. These patients - Q. Yet you never spoke to the Union about resolving these did you. A. I spoke to the Union about patient care and I also stated to the Union that if they cared - Q. When did this occur. A. I believe at different meetings - Q. What was the first one. A. It was before the first meeting when the slapping incident occurred and I said this to Mr. Lednicky that if the Union would only speak to these employees and tell them what their duties were that they were dealing with human life and not just a piece of wood this was not industry these were human beings to be dealt with as human beings. Not this bickering and arguing and doing everything that they were not suppose to be doirg in- stead of patient care. This is really my thing. I couldn't care less about the Union, persay, if they want to con- duct their meetings that was their prerogative. Mr. Led- nicky came into my office, he was a perfect gentleman, I never once was rude to him or to any other Union official that came, I believe he came in with another gentleman that day, no I don't remember whether it was just with K. Day or another gertleman. Director Dzialo further testified as follows I did tell her that there was a Union at the Green Oak Manor it was a closed Union shop there was a statement in the contract that said that there was a probationary period and that it was mandatory to join after this probationary period. Q. What about this question of her having to join. A. That was her prerogative whether she wanted to join or whether she didn't but it was mandatory as far as the contract was concerned. I did tell her that there was great unrest at the Nursing Home, I felt a great sense of duty-because she was bound to encounter this. Director Dzialo also stated that employee Pandous had considerable personal problems while employed at the Home, GREEN OAK MANOR 661 and that her attendance was so poor until she finally had to discharge her Witness Pandous did not dispute this latter testimony by the director.' Mari Craig credibly testified that she has worked for the Respondent as a nurse's aide for about 7 years; that in Sep- tember 1972, she was working with employees Kathleen Day and Mildred Sprague and she (Craig) and her girlfriend, Norma Teeter, did not desire to become members of the Union although they were compelled to join the same; and that as a result of them not having willingly joined the Union they were subjected to continual harassment from Kathleen Day and Mildred Sprague heretofore described by Director Dzialo. Employee Craig further testified that Union Repre- sentative Kathleen Day and Mildred Sprague would urge her and her girlfriend, Norma, to refrain from doing certain work because if they failed to do some of the work, the Respondent would be compelled to employ additional help; that she and her girlfriend, Norma, would need help with the laundry and with heart patients and would request such help from Day and Sprague, but the latter two nurses aides would refuse to assist them because they were not for the Union; that she (Craig) came in one day and proceeded to make beds in the section to which she was assigned, when employee Sprague proceeded to make the same beds; that when she (Craig) complained that Day was making beds in her (Craig) section, Day grabbed her and proceeded to strike her head against the wall; that she reported Day's conduct to Director Dzialo who called both parties including nurses aide Teeter into the of- fice; that Day admitted she struck Craig and then proceeded to strike another nurses aide in the presence of Director Dzialo. Craig further stated that she and her friend Norma Teeter constantly complained to Director Dzialo about the union dissension among the employees in the Home from 2 1 credit the testimony of Director Dzialo not only because I received the distinct impression that she was testifying truthfully, but also because her account of the events which occurred at the Home was essentially cor- roborated by the credited testimony of all employee witnesses Further- more, her testimony is in concurrence with the logical consistency of all of the evidence of record Her testimony is also credited because she appeared to be so preoccupied with her dedication to nursing and her deep interest in the welfare of the patients , that she appeared to have lacked any strong feelings either for or against union activities of the employees It was also obvious from her expressions and the manner in which she testified, that her frustrated concern was not with reasonable and legitimate union activity of the employees, but rather with the extensive union/nonunion dissension among the employees which was affecting the efficient operation of the Home to the detriment of the patients I do not deem the witness' failure to identify every single employee with whom she communicated about the employees dissatisfaction with the union activity a question of her credibil- ity, but rather I deem it a reasonable lapse of memory without any intent to conceal or falsify the facts Hence, I hereby admit counsel for the General Counsel's motion to admit an affidavit (G C Exh 5) given by the witness to the NLRB in another proceeding, for the purpose of evaluating her credibility herein Even though said affidavit is admitted in evidence, it does not affect her credibility in my judgment , because it is not unreasonable for her to be unable to identify from memory, every single employee with whom she spoke during the period in question However, it is not ai all unreasonable for the witness to have remembered that she spoke to practically every employee or received complaints from practically every employee over a course of several weeks prior and subse- quent to November 10 Although it was noted as a matter of record that the witness was a nervous and talkative witness with whom counsel for both sides had some difficulty in having her make her answers responsive, at no time during the proceeding did I ever receive the impression that the witness was testifying in anyway other than truthfully Moreover, her testimony is largely corroborated by employees Mari Craig , Florence Reese, and former employee Frances Pandous September through November She said that she and Norma were being harassed about a revote in a new election before the NLRB; that Day was a delegate to the Union and she and Teeter told Director Dzialo that they did not want any part of the Union; and that they did not want the Union in the Home because it had brought nothing but trouble (dissension among the employees).' Florence Reese credibly testified that she has been em- ployed by Green Oak Manor since 1971 as a nurses aide; that she is a union delegate for the second shift; that in September 1972 she talked with Director Dzialo about the unrest among employees at the home and the fact that employees Day and Sprague, of the first shift, were not doing some of their work which was hidden and left for aides on the second shift to do, that Sprague would tell her to "leave the laundry, don't pick up the glasses, leave them don't touch them things"; that she told Director Dzialo that Mr. Cady, the union representative, was not representing the employees as he should; that when the employees tried to get in touch with Mr. Cady he would refer them to employee Sprague; that she also told the direc- tor she (Reese) was very upset and did not want to have anything to do with the Union; that she had discussed the Union with other employees, Cathy Litton, Rose Chase, and Gerry McGinnis; that these employees did not wish to have anything to do with the Union and that she continued to complain of the employee unrest to the director through November 13 or 14; that she was receiving telephone calls at home from employees Day and Sprague whose voices she recognized, and she reported these occurrences to Director Dzialo; and that such troubles and dissension among the employees occurred nearly every day.' Frances Pandous testified that she has worked for the Re- spondent until November of 1972; that at the time she was interviewed for employment in September of 1973 by Direc- tor Dzialo, the latter advised her that the employees had a union and that the Home was having some problems with it; that the director asked her if she wanted to join the Union and she replied that it made no difference to her (Pandous) one way or the other; that the director did not say anything bad or good about the Union, but simply said they were having problems with it and that she did not want to know her (Pandous') opinion about it until she became acquainted with it. On further direct examination by counsel for the General Counsel, employee Pandous testified that she did recall pre- viously telling the General Counsel that Director Dzialo said she was against the Union and wanted to get nd of it. How- ever, the witness added that Director Dzialo was against it because it was causing the Home so much trouble. On further interrogation by counsel for the General Coun- sel, Pandous said Director Dzialo asked her during her inter- view for employment whether she would be for the Union and she replied that she did not care one way or the other as long as she gets a job; that after being hired she learned about the prounion, conunion employee dissension and threats and de- cided that she did not want to join the Union. However, 3 I credit the testimony of Mari Craig because she appeared to be telling the truth and her testimony is essentially consistent with that of Director Dzialo and nurses aides Reese and Pandous I credit the testimony of employee Reese because she too appeared to be testifying truthfully and her testimony is also essentially consistent with Director Dzialo and nurses aides Craig and Pandous 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director Dzialo had told her that if she accepted employment there she would have to join the Union within 30 days in accordance with the Union's bargaining contract ; that the director asked her if she accepted employment would she sign to get rid of the Union; that after she was employed she learned from her coworkers that there would be a meeting and some of the workers were going to vote against the Union; and that when she was hired the director told her she would have to oppose the Union. Since witness Frances Pandous' testimony about her con- versations with Director Dzialo during her employment in- terview appeared to have been somewhat contradictory, un- sure, suggestive , and lacking in clarity , I interrogated her as follows: JUDGE GADSDEN: I would like to ask the witness one question to clarify the record and I'd wish that you would listen to me very carefully: During your interview for employment, you made the statement that the Union was discussed or at least Mrs. Dzialo mentioned the Union to you and the problem, did she at any time say anything to you which you understood to mean that if you joined the Union you would not be employed. THE WITNESS: No. Nothing like that. JUDGE GADSDEN: During the interview did she at any time say anything to you which led you to believe that if you joined the Union you would not be employed. THE WITNESS: No. I was there I got the feeling that if I did join that's the way I felt the way she didn't like the Union. JUDGE GADSDEN: But did she say anything to you that caused you to feel that way? THE WITNESS: No, just that she didn't like the Union and it was causing a lot of trouble for her and I figured that she didn't want it either and if I signed for the Union I figured I wouldn't have a job either. JUDGE GADSDEN: I think you also said something in your testimony about opposing the Union and did she ask you any questions with respect to your feelings about the Union. THE WITNESS: Just exactly what I felt about the Union and I said I don't care either way just as long as I have a job. JUDGE GADSDEN: Did she indicate to you by saying anything to you that, lead you to believe that you would not have been hired based upon how you felt about the Union. THE WITNESS: Not exactly, No. - JUDGE GADSDEN: Please, answer as precisely as you can, now, did she say anything that lead you to believe that. THE WITNESS: Not exactly, No, when I worked would I go along with the other girls to get rid of the Union. JUDGE GADSDEN: Did you feel at that time that if you didn't join those who were opposing the Union you would not have been hired. THE WITNESS: That's the way I felt, yes. JUDGE GADSDEN: Did she say that to you or anything to make you believe that. THE WITNESS: No. Just the way she had asked about the Union, how I thought about it - JUDGE GADSDEN: But your answer to her in terms of your feelings about the Union - THE WITNESS: I said I didn't care either way. JUDGE GADSDEN: It did not matter either way. THE WITNESS: No, as long as I had a job.' Richard Lednicky credibly testified that in late August or early September 1972, he succeeded a Mr. Francis Cady as an organizer for District 1199 Mass., National Union of RWDSU, AFL-CIO, formally known as Local 1199 Massa- chusetts National Union of Hospital and Nursing Home Em- ployees, RWDSU, AFL-CIO, and that he proceeded to com- municate with the successor Respondent herein; that prior to the expiration of the collective-bargaining agreement (11/10/72) between the Respondent and the Union, he wrote a letter (Resp. Exh. 1) requesting a meeting to negotiate a new collective-bargaining contract; that thereafter the respective parties did meet in negotiation sessions on October 18 and 25, and on November 10; that after the third session on Novem- ber 10 he received a telephone call and a letter (G.C. Exh. 4) from Respondent which read as follows: November 13, 1972 Mr. Richard Lednicky Local 1199, National Union of Hospital and Nursing Home Employees, RWDSU 128 Boylston Street Boston, Massachusetts 02116 RE: Faye Nursing Home d/b/a Green Oak Manor and Local 1199, National Union of Hospital & Nursing Home Employees Dear Sir, Please be advised that on behalf of the above named Employer, I have filed "RM" petition with the N.L.R.B. Boston Office, seeking to determine whether a majority of bargaining unit employees still desire your union as their collective bargaining representative. This action was initiated after the expiration date of midnight November 10, 1972 to the parties prior bargainng agree- ment. In light of the foregoing, I am cancelling any further bargaining sessions with your union until or unless your majority status is re-established by means of an N.L.R.B. conducted election. LMS/j Very truly yours, 5 I credit and discredit certain portions of Frances Pandous' testimony as follows: With respect to the prounion, conunion dissension and unrest among the employees in the Home, I credit the witness' testimony because it was clear, it was essentially consistent with the testimony of Director Dzialo and nurses aides Craig and Reese. However, with respect to her testimony which implied that Director Dzialo wanted her to oppose the Union or that the director hired her upon her'(Pandous') attitude towards the Union, I discredit her account because it was based upon mere conjec- ture of the witness, rather than upon any clear statement or question by the director, as the witness ultimately admitted. t GREEN OAK MANOR 663 cc: LAWRENCE M. SISKIND In view of the fact that the evidence of record clearly shows Richard D Zaiger, Esq. N.L.R.B. Bulfinch Bldg. 15 New Chardon Street - Boston, Mass 02114 Mr. Lednicky further testified that he presented a contract proposal at the first bargaining session on October 18 which included a request to retain the union-security clause of the existing agreement, that at the second bargaining session on October 25, the Respondent did not feel that it should honor the union-security clause; that in the bargaining session on November 10, counsel for Respondent advised him that Re- spondent had advised him that Respondent had rejected ev- erything that the Union had proposed; and that he was com- pletely surprised when he received Respondent's letter (G C. Exh. 4) of November 13, because he and counsel had agreed to have another bargaining session on November 13.6 Mr Lednicky denied that Director Dzialo ever informed him about the employees' unrest and dissatisfaction with the Union or its activities.' Analysis and Conclusions A review of the evidence of record makes it clear that the crucial question presented for decision in this proceeding is whether Respondent, at the time it withdrew its recognition of the Union (11/13/72), had sufficient objective considera- tions (grounds) for believing a majority of its employees no longer desired the Union's representation, and which thereby justified its refusal to bargain thereafter with the Union. The principle of law applicable in the resolution of this question appears to be well settled as stated in Celanese Corporation of America, 95 NLRB 664 (195 1), and in Laystrom Manufactur- ing Co., 151 NLRB 1482 (1965), as follows: Absent special or unusual circumstances, a union enjoys an irrebuttable presumption of majority status for 1 year. Thereafter, the presumption becomes rebuttable upon a sufficient showing which cast doubt on the Union's con- tinued majority status. At that point, the burden of going forward with the evidence shifts to the General Counsel to prove that, on the critical date [November 13, 1972, herein] the Union in fact represented a majority of the employees 6 1 credit the testimony of Mr'Lednicky because his testimony in this regard is undisputed and the manner in which he testified conveyed an image of truthfulness I However, I do not credit Mr Lednicky's denial that Director Dzialo informed him about the employees' unrest and dissatisfaction with the Union or its activities because of the unsure and slow manner in which he testified in this regard, and also because of the impression I received from observing his demeanor that he was not telling the truth while he'was undergoing direct and cross-examination on this subject He first said he did not recall Director Dzialo informing him of the unrest and dissension among the employees, and he did not deny that he knew about or participated in a discussion about the slapping incident that more than a year has elapsed since the Union was certi-' fied the collective-bargaining representative for the em- ployees of the Respondent, the evidence does not call into question an irrebuttable presumption which prevails through- out the 1-year period following certification.' On the contrary, the evidence shows that, pursuant to law, a presumption of continued majority status prevails in favor'of the Union. In this regard, a careful examination of the Respondent's evi- dence of its asserted doubt of the Union's majority status before, on, and subsequent to November 13, shows that the Respondent had been specifically and personally informed (through its Director Dzialo) by all employees in its employ before and on November 13, as well as by some employees who were no longer in its employ, that they either did not want any part of the Union, or that they did not want the Union. Although only one of the employee witnesses who testified said she specifically advised director Dzialo that she did not want the Union to represent her. I, nevertheless, was per- suaded by the testimony of Director Dzialo and the other employee witnesses that the other employees' expressions about the Union meant they were dissatisfied with the Union's activities and representation and no longer desired it as their official representative. Based upon the evidence, I am further of the opinion that the Respondent also understood the employees to mean that they were renouncing their sup- port for the Union. Under the circumstances of the em- ployees, whose memberships in the Union were required by a union-security clause in order for them to remain employed by the Respondent, it would appear that the only realistic interpretation to be placed upon the evidence is that the employees were saying they no longer desired the Union to represent them. ' =- While it is true that the employees could have withdrawn their membership from the Union or cancelled their check- offs, I do not believe that such acts of renunciation of em- ployees are required of the Respondent by the law in order to demonstrate that it has a reasonable good-faith doubt of the Union's majority status of employees. This is especially so where the employees' memberships in the Union are re- quired by a union-security clause in the contract. In any event, while such a requirement may be more demanding where the Respondent contends and must in fact establish a lack of majority support for the Union, such a requirement would certainly not appear to be mandatory to support a reasonable and good-faith doubt of the Respondent that the Union no longer enjoyed its majority status. In this respect, the law is clear that where certification of a Union has been in effect for 1 year or more, an employer may withhold recog- nition or further bargaining with a union without violating the Act if, but only if, he in good faith has a reasonable doubt of the union's continuing majority status. Such an assertion of doubt by an employer must be made in good faith and must be supported by objective considerations. The applicable test as defined in the Celanese case, heretofore cited, is whether or not the objective facts furnish a "reasonable basis" for the asserted doubt, or, stated another way, whether or not there are "some reasonable grounds for believing the Union has lost its majority status since its certification " Thus, in applying these applicable principles of law to the 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts in the instant case, it is first noted that the record does not contain any evidence or allegation of bad-faith bargaining on the part of the Respondent, inasmuch as the latter was engaged in bargaining sessions and amenable to bargaining up to the very day Respondent terminated further bargaining sessions. The fact that it had not presented a counterproposal within that short bargaining period or that the parties had not reached an agreement is not ipso facto evidence of bad-faith bargaining. It is also noted that the Respondent is not charged with nor does the evidence indicate that it engaged in any other unfair labor practice. Moreover, a few days subsequent to informing the Union that Respondent would not engage in further bargaining sessions because it doubted the Union's majority status, it nevertheless filed an RM peti- tion in further support of its doubt that the Union continued its majority status. While it is true that it is better for an employer questioning a union's majority status to continue to bargain and file an RM petition if sufficient facts exist to support a good-faith doubt of majority status, the law does not indicate that the employer is bound to file such a petition as a condition precedent to withdrawal of recognition of the union and bargaining sessions . The fact that Respondent did file an RM petition almost concurrently with its refusal to bargain is evidence of its good faith that it doubted the Union's majority status. In this case the objective considerations upon which the Respondent predicates its doubt of the Union's majority status consist of the creditable testimony of the Respondent's director, two of its employees, and a former employee. Here the director of the Respondent (Theresa Dzialo) credibly testified that all of the 23 employees (employed on November 13, 1972, and more specifically the 14 employees identified in her testimony) complained to her about their dissatisfaction with the Union and/or its activities, and expressed their renunciation of the Union and/or its activities. In this regard, Director Dzialo's testimony was in great part corroborated by the testimony of employee Mari Craig, Florence Reese, and former employee Frances Pandous. Their testimonial versions are all undisputed in the record and counsel for the General Counsel did not submit any credible evidence to refute or discredit any of the Respondent's testimony with respect to the Union's majority representative status. It is therefore clear that the objective evidence of Respondent's doubt of the Union's majority status coincided with its as- serted refusal to bargain on November 13. The Board has repeatedly held that once it is established that the employee has "an objective basis" to justify its doubt, as I find in the instant case, the General Counsel has the burden of proving the Union's majority status. Since the General Counsel did not introduce any evidence to establish the Union's majority status nor any evidence to refute the Respondent's evidence of reasonable belief of lack of union majority status, the evidence of record compels the conclu- sion and finding that the Respondent has successfully rebut- ted the presumption of the Union's majority status. To hold otherwise, I would be compelled to disregard or discredit the testimony of all of Respondent's witnesses, including the General Counsel's witness, Frances Pandous, and find for the General Counsel, solely upon his argument, unsupported by any evidence, that the Respondent's doubt was not reasona- bly based upon objective considerations, and/or that it was asserted in bad faith. Certainly such a finding under either theory would be without foundation in the record. Finally, based upon the foregoing evidence, the law, and reasons, I conclude and find that the Respondent 's doubt of the Union's majority status was reasonably supported by ob- jective considerations (renunciation of the Union by a majority of its employees) and asserted in good faith on November 13 and thereafter; that the burden of going for- ward with the evidence then shifted to counsel for the Gen- eral Counsel, who did not go forward with any credible and convincing evidence to the contrary, that the Respondent's evidence therefore successfully rebutted the presumption of the Union's majority status; that consequently, the presump- tion of the Union's majority status has been successfully over- come by the Respondent; and that, therefore, the Respondent did and could justifiably refuse to bargain with the Union on and subsequent to November 13 and that such refusal was not violative of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Accordingly, it will be recommended that the complaint be dismissed. Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Faye Nursing Home, Inc., d/b/a Green Oak Manor, the Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1199 Mass., National Union of Hospital and Nursing Home Employees, RWDSU, AFL-CIO, herein, is a labor organization within the meaning of Section 2(5) of the Act 3. The Respondent has not engaged in any unfair labor practices, as alleged, within the meaning of Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The complaint in this matter is dismissed in its entirety 8 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and Order and all objections thereto shall be deemed waived for all puiposes