337 NLRB 22
Horizon House Development
22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Horizon House Developmental Services, Inc. and Dis
trict 1199C, National Union of Hospital and
Health Care Employees, AFSCME, AFL–CIO.
Case 4–CA–29830
December 19, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On June 27, 2001, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exc eptions and
briefs and has decided to affirm the judge’s rulings, find
ings, and conclusions only to the extent consistent with
this Decision and Order.
I. FACTS
The Respondent is engaged in the provision of health
care and related services to mentally dis abled individuals
in Philadelphia, Pennsylvania. In 1997, the Union was
certified as the exclusive bargaining representative of a
unit of resident advisors within the Respondent’s Bucks
County division. Following the Union’s certification, the
parties entered into a collective-bargaining agreement,
with effective dates from December 21, 1998, through
September 30, 2000. Prior to the expiration of that con-
tract, in June 2000,1 the Union requested that the Re
spondent commence negotiations for a new collective-
bargaining agreement. Although the parties attempted to
schedule bargaining sessions, they ultimately never met
for negotiations.
Also prior to the expiration of the parties’ contract, and
in anticipation of future negotiations, the Union re-
quested certain information from the Respondent—
including a recent payroll run, medical benefits informa
tion, and the number of regular and overtime hours
worked by unit employees in the prior 12 months—as
well as a “leave bank policy” referenced in the existing
collective-bargaining agreement. The Respondent did
not provide the Union with the requested information,
although it did notify the Union that its request for the
“leave bank policy” had been forwarded to the Respon
dent’s counsel.
Several weeks after its information request, the Union
additionally filed three class action grievances against the
Respondent, alleging that supervisors were performing
bargaining unit work, and that employee work schedules
1 All dates referenced herein are in 2000, unless otherwise indicated.
had been changed without notice and had not been
posted as required. In response, the Respondent sent a
letter to the Union requesting that it provide the Respon
dent with specific details as to when the alleged contract
violations had occurred. A representative of the Union,
in turn, replied that all of the facts relating to the griev
ances would be set forth at the grievance hearing, and the
parties subsequently had no further discussions or meet
ings concerning the grievances.
Also during the period of time preceding the expiration
of the parties’ collective-bargaining agreement (from
approximately May through October), the Respondent
convened several meetings during which management
and supervisory personnel discussed the status of the
Union and exchanged information regarding the employ
ees’ purported sentiments (i.e., employee disaffection)
toward the Union. As a result of those meetings, the
Respondent ostensibly determined that the employees no
longer wanted the Union as their representative and on
October 2 withdrew recognition from the Union.2 Also
on October 2, the Respondent issued to the unit employ
ees a memorandum, which provided in pertinent part:
[A]s far as we can tell, most of you would rather not
have a union at all and are completely happy to be left
alone about the issue. Because of this, beginning Oc
tober 2, 2000, Horizon House will try to have the union
decertified. We do this because we want each of you to
have the right to decide for yourselves, now, if you
want to have a union or not.
Thereafter, on October 11, the Respondent filed an RM
petition with the Board.3
Based on the events described above, the complaint al
leges that the Respondent violated Section 8(a)(5) and
(1) of the Act by withdrawing recognition and failing to
bargain with the Union for a new collective-bargaining
agreement, by failing to provide necessary and relevant
information requested by the Union, and by failing and
refusing to process grievances filed by the Union.
II. THE JUDGE’S DECISION
The judge concluded that the Respondent did not vio
late the Act by withdrawing recognition and refusing to
bargain with the Union. The judge determined that tes
timony from the Respondent’s Director of Human Re-
sources and other supervisory personnel served to estab
lish that the Respondent possessed a good-faith uncer-
2 At this time, the unit consisted of 22–23 employees.
3 As a result of the Union’s instant unfair labor practice charges al
leging violations of Sec. 8(a)(5), the Regional Director dismissed the
RM petition subject to reinstatement upon the disposition of the unfair
labor practice proceedings.
337 NLRB No. 9
HORIZON HOUSE DEVELOPMENTAL SERVICES
23
tainty regarding the Union’s majority status. The judge
relied principally on his findings that (1) Home Coordi
nator Barbara Rossi testified that employees Morrison,
DiYenno, and Moore had apprised her that the Union
was not necessary and that it was unfair to be required to
pay dues and not receive representation; (2) Home Coor
dinator Erica Mount testified that employees Thompson
and Garglahn had complained to her about paying dues
and not being represented by the Union; and (3) em
ployee Thompson, the former union delegate (i.e., stew
ard), had told several members of management “that the
employees no longer wanted the Union to represent
them” and that they were circulating a petition to that
effect.
Having thus concluded that the Respondent was privi
leged to withdraw recognition from the Union, the judge
determined that the Respondent did not violate the Act
by refusing to provide information requested by the Un
ion in preparation for negotiations. Finally, the judge
concluded that the Respondent did not violate the Act by
refusing to process the class-action grievances filed by
the Union. The judge reasoned that the Union’s admitted
failure to respond to the Respondent’s letter requesting
additional information regarding the details of the al
leged contract violations—together with the Union’s
failure to exercise its option to elevate the grievances to
the next step of the grievance procedure—precluded a
finding that the Respondent refused to process the griev
ances at issue. Accordingly, the judge dismissed the
complaint in its entirety.
III. CONTENTIONS OF THE EXCEPTING PARTIES
Both the General Counsel and the Union contend that
the judge misconstrued much of the testimony on which
he relied in reaching the conclusion that the Respondent
possessed a good-faith uncertainty of the Union’s major
ity status such that the Respondent was justified in with-
drawing recognition from the Union. The General Coun
sel and the Union assert that the record evidence cannot
be reconciled with the judge’s findings, and that the ac
tual, limited evidence demonstrating employee opposi
tion to the Union is insufficient to establish a good-faith
uncertainty regarding the Union’s status.
Therefore, the General Counsel and the Union assert,
the Respondent’s withdrawal of recognition from the
Union violated Section 8(a)(5) of the Act. From that
premise, the General Counsel and Union further aver that
the judge additionally should have found that the Re
spondent violated the Act by failing to provide the re-
quested information, which the Union sought in anticipa
tion of negotiations, and which was presumptively rele
vant to the Union’s discharge of its collective-bargaining
responsibilities. Finally, the Union contends that, con
trary to the judge’s finding, the Respondent violated Sec
tion 8(a)(5) by refusing to process the Union’s griev
ances.
IV. ANALYSIS
It is well established that the majority status of an in
cumbent union may not be challenged during the life of a
collective-bargaining agreement (for a period of up to 3
years): there is an irrebuttable presumption that the un
ion retains its majority status during the term of the con-
tract. See Auciello Iron Works v. NLRB, 517 U.S. 781,
786 (1996).
Following the expiration of a collective-
bargaining agreement between an employer and incum
bent union, however, the presumption that the union en-
joys majority support becomes rebuttable. R.J.B. Knits,
Inc., 309 NLRB 201, 205 (1992). Pursuant to longstand
ing Board precedent—which was controlling at the time
of the Respondent’s withdrawal of recognition in this
case—an employer can rebut the presumption and, ac
cordingly, lawfully withdraw recognition from an in
cumbent union, if the employer demonstrates that the
union has actually lost majority support, or that the em
ployer possesses a good-faith doubt that the union retains
its majority status. See Celanese Corp., 95 NLRB 664
(1951).4
In Allentown Mack Sales & Service v. NLRB, 522 U.S.
359 (1998), the Supreme Court considered the issue of an
employer’s withdrawal of recognition based on a pur
ported good-faith doubt of the union’s majority status.5
The Supreme Court first clarified the standard under
which an employer’s withdrawal of recognition is exa m
ined. The Court instructed that the term “doubt” as used
in the Board’s good-faith doubt standard signifies “un
certainty,” such that the relevant inquiry is whether the
employer at issue “lacked a genuine, reasonable uncer-
4 During the pendency of this case, the Board in Levitz, 333 NLRB
717 (2001), reconsidered the circumstances under which an employer
may lawfully withdraw recognition from an incumbent union. In that
case, the Board overruled Celanese to the extent that it permitted an
employer to withdraw recognition based on a good-faith doubt, and
held that “an employer may rebut the continuing presumption of an
incumbent union’s majority status, and unilaterally withdraw recogni
tion, only on a showing that the union has, in fact, lost the support of a
majority of the employees in the bargaining unit.” Id. at 725. Recog
nizing that many employers had likely relied on Celanese and its prog
eny in assessing whether they could properly withdraw recognition,
however, the Board determined that it would not apply its holding
retroactively, but rather would “decide all pending cases involving
withdrawals of recognition under existing law: the ‘good-faith uncer
tainty’ standard as explicated by the Supreme Court in Allentown
Mack.” Id. at 729. Accordingly, that standard is the controlling stan
dard for analysis in this case.
5 The Board in that case rejected the employer’s claim that a good-
faith doubt as to the union’s majority status justified its withdrawal of
recognition from the union and found that the employer violated Sec.
8(a)(5).
24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tainty about whether [the union] enjoyed the continuing
support of a majority of unit employees.” Id. at 367.
Applying this standard to the facts of the case, the Court
then concluded that the Board had ignored or failed to
accord proper weight to various evidence bearing on em
ployee sentiment toward the union, and that due consid
eration of such evidence compelled the conclusion that
the employer had reasonable, good-faith grounds to be
uncertain about the union’s majority status. Id. at 371.6
Applying the “good faith uncertainty” standard articu
lated in Allentown Mack and explicated in subsequent
Board decisions,7 we conclude, contrary to the judge, that
the Respondent did not demonstrate that it possessed a
good-faith uncertainty regarding the Union’s majority
status.
In so concluding, we agree with the contentions of the
General Counsel and the Union that the judge inaccu
rately characterized some of the testimony on which he
relied in finding a good-faith uncertainty.8 For exa mple,
the judge relied on testimony by Home Coordinator Bar
bara Rossi. According to the judge, Rossi testified that
employees Lucy Morrison, Karen DiYenno, and Tanisha
Moore informed her that the Union was not necessary,
that the employees were not receiving representation, and
that it was unfair that the employees be required to pay
dues without receiving representation from the Union.9
A review of the record, however, reveals the inaccuracy
of the judge’s characterization of Rossi’s testimony.
Rossi’s testimony does not demonstrate that any of the
referenced employees complained that they were not
receiving representation or that they were receiving in-
adequate representation relative to the dues they were
paying. Rather, employee Morrison merely complained
to Rossi regarding the difficulty of contacting the Union
in connection with her receipt of a disciplinary memo
randum. As to employee Moore, Rossi merely testified
6 In reaching that conclusion, the Court relied on the following: (1)
evidence of firsthand confirmed statements of opposition to the union
by 7 of 32 unit employees; (2) the stat ement by an eighth employee that
“he was not being represented for the $35 he was paying”; (3) the
statement by a night shift employee to a manager that the entire night
shift did not want the union; and 4) the statement of an employee—who
was a union steward and a member of the union’s bargaining commit
tee—that if a vote were taken, the union would lose.
7 See, e.g., Nova Plumbing, Inc., 336 NLRB No. 61 (2001); Marion
Memorial Hospital, 335 NLRB 1016 (2001); The Henry Bierce Co.,
328 NLRB 646 (1999). Chairman Hurtgen dissented in Nova and
Marion, and he did not participate in Henry Bierce. However, he
agrees that Respondent has not shown a good-faith uncertainty here.
8 Accordingly, we need not, and do not, decide whether the facts as
found by the judge would be sufficient to establish a good-faith uncer
tainty under Allentown Mack.
9 The judge did not find that each of the three employees complained
of all three matters.
that Moore had complained about being required to pay
dues, when other employees were not so required.
In our view, the statements of employees Morrison and
Moore do not establish a good-faith uncertainty as to
whether they supported the Union. Neither Morrison’s
nor Moore’s statement constitutes a direct expression of
opposition to the Union. Further, in contrast to the
statement of an employee in Allentown Mack that “he
was not being represented for the $35 he was paying,”
we do not think the employees’ remarks here can fairly
be read as even “statements of dissatisfaction with the
quality of union representation,” which the Supreme
Court indicated “can unquestionably be probative to
some degree of the employer’s good-faith reasonable
doubt.” Allentown Mack , 522 U.S. at 379–380. Rather,
employee Morrison simply expressed frustration con
cerning her inability to reach the Union on a particular
occasion. Employee Moore’s communication principally
reflected her desire that her colleagues comply with their
obligation to remit dues to the Union. Even if her com
ment could be read as an expression of her displeasure
with paying dues, however, it still would not demonstrate
a disinterest in union representation. See R.J.B. Knits,
309 NLRB at 206.
Only Rossi’s testimony regarding employee Di-
Yenno’s comments to her could be construed as an indi
cation of opposition to the Union. Rossi testified that
DiYenno relayed to her a conversation with a group of
employees concerning the need for a union in the past,
and DiYenno purportedly responded that she was “not
interested in unions and she doesn’t live in the past.”10
As DiYenno’s statement evidencing a disinterest in un
ions generally could call into question her support for the
Union here, the judge properly considered DiYenno’s
comment as evidence contributing to a good-faith uncer
tainty of the Union’s majority status.
An examination of the record further reveals that the
judge also inaccurately characterized testimony from
Home Coordinator Erica Mount. The judge found that
Mount testified that employees Traci Thompson and Ar
thur Garglahn “complained to her about the necessity of
10 Rossi also testified that employee DiYenno subsequently com
plained to Rossi regarding her inability to get in contact with the Union
in connection with her receipt of disciplinary action, and indicated that
she “was going to make a complaint” because she felt that the Union
was discriminating against her.
However, DiYenno relayed this in-
formation to Rossi several months after the Respondent’s withdrawal
of recognition from the Union. Accordingly, we do not rely on this
evidence in determining the existence of a good-faith uncertainty on the
part of the Respondent. See Murrysville Shop ‘N Save, 330 NLRB
1119 (2000).
HORIZON HOUSE DEVELOPMENTAL SERVICES
25
paying dues and not being represented by the Union.”11
The record, however, indicates that Mount allegedly re
ceived complaints from employees Arthur Ga rglahn and
Linda DeJesus—not from employee Thompson12—to the
effect that not all of the employees were paying dues
because their dues cards had been lost and, additionally,
that the staff did not want to have dues taken out of their
checks. On cross-examination, however, Mount testified
that Garglahn and DeJesus had complained about the fact
that they had been asked to complete new dues cards
because their original cards had been lost.
Given
Mount’s somewhat contradictory testimony regarding the
complaints from employees Ga rglahn and DeJesus, the
exact nature of the employees’ actual statements is un
clear.
However, we find that under any version of
Mount’s testimony, the statements of employees Ga r
glahn and DeJesus are not indicative of the employees’
support or lack of support for the Union. Even assuming
that Garglahn and DeJesus relayed to Mount complaints
that employees did not want to have dues taken out of
their paychecks, the Board has consistently held that em
ployees’ opposition to paying dues or to dues checkoff is
irrelevant to the issue of their support for the Union. See
Hospital Metropolitano, 334 NLRB 555, 556 (2001);
R.J.B. Knits, 309 NLRB 206. Even less probative of the
employees’ sentiments toward the Union, however, is
Garglahn and DeJesus’ purported complaint that other
employees were not paying their union dues. Garglahn
and DeJesus’ irritation or concern that their fellow em
ployees were not complying with their obligation to pay
union dues—similar to employee Moore’s complaint
discussed above—can hardly be viewed as an expression
of discontent with the Union. Similarly, their complaint
regarding the necessity of completing new dues cards
merely reflects frustration with the administrative incon
venience they experienced. Neither statement evidences
a lack of support for the Union or even dissatisfaction
with the quality of the Union’s representation.13
11 In the “Facts” section of his decision, the judge stated that Mount
testified that employees Thompson and Garglahn “complained to her
about the necessity of paying dues and not being represented by the
Union”; in contrast, the judge in the “Analysis” section of his decision
indicated that employees Thompson and Garglahn complained to
Mount about “paying dues and not being able to contact the Union”
(emphasis added).
12 Regarding employee Thompson, Mount testified only that, some-
time prior to Respondent’s withdrawal of recognition, Thompson made
the innocuous statement that “when she would make calls [to the Un
ion], it would be a while before she would get a response.”
13 Indeed, ironically, it may be that the employees’ complaints to
representatives of the Respondent reflected the view that the Respon
dent was accountable for (and capable of rectifying) the loss of dues
cards and the consequent failure of other employees to pay dues.
We additionally find no support in the record for the
judge’s finding that employees Garglahn and Thompson
complained to Home Coordinator Mount that they were
not being represented by the Union. At most, the record
reveals that Garglahn and Thompson indicated that they
were experiencing difficulty in contacting the Union,
consistent with the judge’s finding in the “analysis” sec
tion of his decision, see fn. 11, supra. In any event, how-
ever, the specific communications to which Mount re
ferred occurred in April 2001 (Garglahn) and January
2001 (Thompson). As this evidence post-dates the Re
spondent’s withdrawal of recognition, it cannot properly
be considered in support of a finding of good-faith uncer
tainty on the part of the Respondent. See Murrysville
Shop ‘N Save, supra.
Finally, in finding that the Respondent had a good-
faith uncertainty of the Union’s status, the judge improp
erly relied on ambiguous statements attributed to em
ployee Thompson. Thompson served as the union dele-
gate (steward) for the bargaining unit until January, at
which time she resigned from the position. The record
discloses that Human Resources Director Rita Kucsan
testified that in January 2000 Thompson told her that
“the Union didn’t make [a] difference” in terms of the
Respondent’s policies and procedures, that the represen
tation by the Union wasn’t worth the dues, that it was
difficult to get in touch with the Union and, conse
quently, that “they” would be submitting a petition to
remove the Union as their representative.14 Similarly,
Program Director Betti Jo Murphy testified that Thomp
son had indicated to her in April that “they” were com
piling a petition to show that they no longer desired un
ion representation; Murphy further testified that, several
months later, Thompson told her that “they” had filed
such a petition with the Union.
These statements contrast sharply with objective evi
dence presented in prior cases in which the Board has
relied on actual petitions declaring that unit employees
no longer desire representation by a union as support for
an employer’s good-faith uncertainty of the union’s ma
jority status.
Compare Littler Diecasting Corp., 334
NLRB 707 (2001); Levitz, 333 NLRB 717 (2001). Here,
the speculative and ambiguous nature of the comments
about some purported petition precludes a finding of
good-faith uncertainty based on those comments. First,
there is no evidence to indicate that any employee peti
tion ever actually came to fruition.15 More significant,
14 According to Kucsan, Thompson additionally told her that the pe
tition would be filed sometime after July 2000, subsequent to the next
scheduled wage increase.
15 Although Thompson purportedly told Murphy that “they” had
filed the petition with the Union during the summer of 2000, Union
26
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
however, is the fact that both Kucsan and Murphy testi
fied that they did not ask about, nor were they aware of,
either the actual content of the petition or the number of
unit employees who were purportedly involved in the
preparation of the petition. Without some indication as
to the number of unit employees who signed the alleged
petition, the Respondent would have no basis for a good-
faith uncertainty that a majority of the employees no
longer supported the Union. See Raven Government
Services, 331 NLRB 651, 651 fns. 3, 4 (2000) (finding
that the employer’s withdrawal of recognition was not
justified by its reliance on hearsay evidence of a decerti
fication petition, where the employer had never seen the
petition and had no knowledge as to the petition’s con-
tent or the number of employees who might have signed
it). Accordingly, the statements attributed to Thompson
could give rise to an uncertainty regarding only employee
Thompson’s support for the Union.16
Having examined all of the proffered evidence on
which the judge relied in finding that the Respondent
was privileged to withdraw recognition from the Union,
we conclude that only two employee statements could
contribute toward a good-faith uncertainty of the Union’s
status: (1) the statement of employee DiYenno that she
was not interested in unions, and (2) employee Thomp
son’s comments indicating her criticisms of the Union
and her intent to file (along with unidentified others) a
petition to remove the Union. We conclude that this lim
ited evidence, consisting of statements from merely two
of the approximately 22 unit employees, is insufficient to
establish a good-faith uncertainty of the Union’s majority
status under Allentown Mack .17 Accordingly, we con
clude that the Respondent’s withdrawal of recognition
representative Maureen Bendig testified that the Union never received
such a document. Additionally, although the Respondent’s communi
cations with Thompson occurred between January and July, the Re
spondent had never seen or received a copy of the alleged petition at
the time it withdrew recognition in October, 3 to 9 months later.
16 The fact that Thompson subsequently was elected to the union
bargaining committee in August, however, casts some doubt on that
supposition. Nevertheless, we assume that given Thompson’s earlier
statements, the evidence as a whole could cause the Respondent to be
uncertain as to her support for the Union. See Levitz, 333 NLRB supra
(finding irrelevant the employer’s failure to consider evidence from the
union that assertedly contradicted the employee petition giving rise to
the employer’s good faith uncertainty, because “even if [the union’s]
evidence supported [its] assertion, it would simply have produced a
conflict with the earlier petition. Thus, the Respondent could still rea
sonably have been uncertain about the union’s majority status”).
17 We find that the judge properly did not rely on the additional justi
fications proffered by the Respondent for its withdrawal of recognition,
including, inter alia, the failure of a number of employees to authorize
the deduction of dues, poor attendance at union meetings, failure of the
employees to elect a union steward, and the declination by a number of
employees of union representation at disciplinary meetings. No party
has excepted to the judge’s decision in this regard.
from, and refusal to bargain with, the Union violated
Section 8(a)(5) and (1) of the Act. Further, as the Re
spondent in its answer to the complaint admitted that it
failed and refused to provide the information requested
by the Union and failed and refused to process the Un
ion’s grievances—in sole reliance on its assertion that the
Union had lost its majority status—we conclude that the
Respondent’s actions in these matters constitute addi
tional violations of Section 8(a)(5) and (1).
Finally, for the reasons set forth in Caterair Interna
tional, 322 NLRB 64 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em
ployees.” Id. at 68.
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In the Vincent case, the court
summarized the court’s law as requiring that an affirma
tive bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three con
siderations:
(1) the employees’ Section 7 rights; (2)
whether other purposes of the Act override the rights of
employees to choose their bargaining representatives;
and (3) whether alternative remedies are adequate to
remedy the violations of the Act.” 209 F.3d 738.
Although we respectfully disagree with the court’s re
quirement for the reasons set forth in Caterair,18 we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s majority status
for a reasonable time, does not unduly prejudice the Sec
tion 7 rights of employees who may oppose continued
union representation because the duration of the order is
18 Chairman Hurtgen agrees with the court’s requirement.
HORIZON HOUSE DEVELOPMENTAL SERVICES
27
no longer than is reasonably necessary to remedy the ill
effects of the violation.
Moreover, in addition to unlawfully withdrawing rec
ognition from the Union, the Respondent failed and re-
fused to provide information requested by the Union, and
refused to process grievances relating to the terms and
conditions of employment of the unit employees on
whose behalf they were filed. These actions clearly sig
nal to employees the Respondent’s continuing disregard
for their bargaining representative and would likely have
a long-lasting effect.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining in the hope
of further discouraging support for the Union. It also
ensures that the Union will not be pressured, by the pos
sibility of a decertification petition or by the Respon
dent’s withdrawal of recognition, to achieve immediate
results at the bargaining table following the Board’s reso
lution of its unfair labor practice charges and issuance of
a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re
spondent’s violations because it would permit a decerti
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement. Such a result would
be particularly unfair in circumstances such as those
here, where the Respondent’s unfair labor practices were
of a continuing nature and were likely to have a continu
ing effect, thereby tainting any employee disaffection
from the Union arising during that period or immediately
thereafter. We find that these circumstances outweigh
the temporary impact the affirmative bargaining order
will have on the rights of employees who oppose contin
ued union representation.
For all the foregoing reasons, we find that an affirma
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.
AMENDED CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(5) of the Act
by withdrawing recognition from the Union on October
2, 2000, by failing to furnish necessary and relevant in-
formation requested by the Union on August 14 and 30,
2000, and by refusing to process grievances filed by the
Union on behalf of unit employees on August 30, 2000.
2. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Horizon House Developmental Services,
Inc., Philadelphia, Pennsylvania, its officers, agents, suc
cessors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
District 1199C, National Union of Hospital and Health
Care Employees, AFSCME, AFL–CIO as the exclusive
representative of its bargaining-unit employees.
(b) Failing and refusing to provide information rele
vant and necessary to the Union as the collective-
bargaining representative of the employees in the appro
priate bargaining unit described below.
(c) Failing and refusing to process grievances concern
ing wages, hours, and other terms and conditions of em
ployment of bargaining unit employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time, regular part-time and substitute Resident
Advisors II and III employed in the Bucks County,
Pennsylvania Division of Horizon House, Inc., exclud
ing all other employees including home coordinators,
team coordinators, program specialists, guards and su
pervisors as defined in the Act.
(b) Furnish to the Union in a timely manner the infor
mation requested by the Union on August 14 and August
30, 2000.
(c) Process the grievances filed by the Union on Au-
gust 30, 2000, on behalf of unit employees.
(d) Within 14 days after service by the Region, post at
its Bucks County, Pennsylvania facilities copies of the
attached notice marked “Appendix.”19 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent’s author
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
19 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na
tional Labor Relations Board” shall read “Posted Pursuant to a Judg
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
28
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no
tice to all current employees and former employees em
ployed by the Respondent at any time since August 14,
2000.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we vio
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid and protec
tion
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT withdraw recognition from, or refuse to
bargain collectively with, District 1199C, National Union
of Hospital and Health Care Employees, AFSCME,
AFL–CIO as the exclusive bargaining representative of
our employees in the following appropriate unit:
All full-time, regular part-time and substitute Resident
Advisors II and III employed in the Bucks County,
Pennsylvania Division of Horizon House, Inc., exclud
ing all other employees including home coordinators,
team coordinators, program specialists, guards and su
pervisors as defined in the Act.
WE WILL NOT refuse to provide information that is
relevant and necessary to the Union as the collective-
bargaining representative of unit employees.
WE WILL NOT refuse to process grievances concerning
the terms and conditions of employment of bargaining
unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive bargaining representative of the
employees in the above-described appropriate unit con
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
WE WILL in a timely fashion furnish the Union with the
information requested on August 14, 2000 and August
30, 2000, and thereafter.
WE WILL process the grievances filed by the Union on
behalf of bargaining unit employees on August 30, 2000.
HORIZON HOUSE DEVELOPMENTAL SERVICES,
INC.
William E. Slack, Esq. and Edward Bonett Jr., Esq., for the
General Counsel.
Guy Vilim, Esq., of Philadelphia, Pennsylvania, for the Respon
dent-Employer.
Gail Lopez-Henriquez, Esq., of Philadelphia, Pennsylvania, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on May 9, 2001, in Philadelphia, Pennsyl
vania, pursuant to a complaint and notice of hearing (the com
plaint) issued by the Regional Director for Region 4 of the Na
tional Labor Relations Board (the Board) on February 23, 2001.
The complaint, based upon a charge filed on October 2, 2000,1
by District 1199C, National Union of Hospital and Health Care
Employees, AFSCME, AFL–CIO (the Charging Party or Un
ion) alleges that Horizon House Developmental Services, In
corporated (the Respondent or Employer) has engaged in cer
tain violations of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely answer
to the complaint denying that it has committed any violations of
the Act.
ISSUES
The complaint alleges that the Respondent refused to begin
negotiations for a new collective-bargaining agreement in vio
lation of Section 8(a)(1) and (5) of the Act. In addition, the
complaint alleges that the Respondent did not furnish certain
information to the Union and refused to process a number of
grievances. The Respondent defends its refusal to negotiate,
provide information and process grievances due to its good-
1 All dates are in 2000, unless otherwise indicated.
HORIZON HOUSE DEVELOPMENTAL SERVICES
29
faith doubt that the Union no longer represents a majority of the
bargaining unit employees.
On the entire record, including my observation of the de
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Charging Party (joins in the General
Counsel’s brief), and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in providing health
care and related services to the mentally disabled, with an of
fice and place of business located in Philadelphia, Pennsyl
vania, where it annually received gross revenues in excess of
$250,000 and purchased and received at its office goods valued
in excess of $5000 directly from points outside the Common-
wealth of Pennsylvania. The Respondent admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
On July 3, 1997, the Union was certified as the exclusive
collective-bargaining representative of the unit.2 The parties
entered into their first collective-bargaining agreement effective
by its terms from December 21, 1998, through September 30.
On or about June 8, the Union requested Respondent to begin
negotiations for a new collective-bargaining agreement.
Al
though the parties attempted to schedule negotiations for a suc
cessor agreement, no such negotiations occurred prior to or
after the termination of the agreement on September 30. Before
the expiration of the agreement, the Union on August 14 re-
quested three items of information to assist it in negotiating the
successor agreement (GC Exh. 10). Additionally, on August
30, the Union requested the “Leave/Bank” policy referred to in
article 19 of the parties’ agreement to prepare for negotiations
and also filed three class action grievances dealing with work
schedules and supervisors performing bargaining unit work
(GC Exh. 11). By letter dated September 6, Respondent re-
quested the Union to provide specifics of when certain contract
violations occurred in response to the three grievances and
informed the Union that the information request for the
“Leave/Bank” had been referred to its attorney (GC Exh. 12).
On October 2, the Respondent distributed a memorandum to
all bargaining unit employees regarding the status of the Union3
2 The appropriate unit is “All full-time, regular part-time and substi
tute Resident Advisors II and III employed in the Bucks County, Penn
sylvania, Division of Horizon House, Inc., excluding all other employ
ees including home coordinators, team coordinators, program special
ists, guards and supervisors as defined in the Act.”
3 The memorandum states in pertinent part: “Things may get noisy
around her soon, and I wanted to let you know why. Most of you know
that there is a union that is supposed to represent employees working in
our Bucks County CLA programs. A few of you now pay dues to that
union. All of you have recently been told that you must sign dues
cards. There seems to be some confusion who the union is and what
(R. Exh. 1). On October 11, the Respondent filed a RM peti
tion with the Board (GC Exh. 4). By letter dated February 23,
2001, the Board dismissed the RM petition.4 The Respondent
did not file an appeal. The General Counsel noted on the re-
cord that it has filed a 10(j) petition in United States Federal
District Court concerning the Respondent’s refusal to com
mence negotiations for a successor agreement and its with
drawal of recognition from the Union effective October 2.
At all material times Rita Kucsan is the director of human re-
sources for the Respondent, Betti Jo Murphy serves as program
director and Barbara Rossi, and Erica Mount hold the position
of home coordinator. Maureen Bendig, an employee of the
Union, holds the position of administrative organizer and prin
cipally serves as the union representative for employees of the
Respondent. Traci Thompson held the position of Union dele-
gate until January 1, however, after that date she has been rou
tinely designated by the Union to serve in the capacity of an
employee witness representing employees in disciplinary inves
tigations conducted by the Respondent (GC Exh. 31). In Au-
gust 2000, Thompson was elected by the Union to serve as one
of the two employee representatives on the negotiating commit-
tee.
B. Position of the Parties
The General Counsel argues that the Respondent has vio
lated Section 8(a)(1) and (5) of the Act by its refusal to negoti
ate over a successor agreement and its failure to provide infor
mation and process grievances filed by the Union.
The Respondent admits that it did not engage in negotiations
for a successor agreement and did not provide information or
process the three class action grievances submitted by the Un
ion. Respondent defends its conduct and argues that it was
privileged to withdraw recognition from the Union based on its
good faith doubt that the Union has lost the support of the ma
jority of the bargaining unit employees.5 In regard to the Un
they are supposed to be doing. In fact, as far as we can tell, most of
you would rather not have a union at all and are completely happy to be
left alone about the issue. Because of this, beginning October 2, 2000,
Horizon House will try to have the union decertified. We do this be-
cause we want each of you to have the right to decide for yourselves,
now, if you want to have a union or not. Horizon House cannot decide
this-we cannot decide to keep the union or not to keep it, only you can.”
4 The letter stated in pertinent part: As a result of the investigation, I
find that further proceedings are unwarranted. In Case 4–CA–29830, a
complaint issued alleging that the Employer violated Sec. 8(a)(1) and
(5) of the Act by refusing to bargain with the Union. A hearing is
scheduled before an administrative law judge of the Board. In view of
the Employer’s failure to comply with its statutory bargaining obliga
tion, no question concerning representation may be raised at this time.
Big Three Industries, 201 NLRB 197 (1973), enfd. 497 F.2d 43 (5th
Cir. 1974). Accordingly, I am dismissing the petition, subject to rein-
statement, if appropriate, upon application by the Employer after dispo
sition of the unfair labor practice proceeding.
5 The Respondent bases its good faith doubt on the following factors:
1. The parties’ collective-bargaining agreement expired on
September 30.
2. The vast majority of bargaining unit employees have refused
to authorize the collection of dues by the Union, even after being
told by the Union that they could be fired for failing to do so. In-
deed, the Union has never exercised the Union Security provi-
30
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion’s request for information, the Respondent asserts that it was
exclusively sought for the purpose of commencing negotiations
on a successor agreement. Since the Respondent has no obliga
tion to negotiate for a successor agreement, it did not have an
obligation to provide information to the Union. Concerning the
refusal to process the class action grievances, the Respondent
argues that it responded to the Union and sought additional
information in order to conduct an investigation of the griev
ances. It also notes that the Union did not elevate the griev
ances to the next step of the grievance procedure as provided
for in the parties’ agreement.
C. Facts
Kucsan credibly testified that immediately after Thompson’s
resignation as Union delegate on January 1, she sent a letter to
Bendig apprising her that she would send future notices con
cerning discipline or other working conditions to the Union.
Kucsan noted in her testimony that from the inception of the
Union’s 1997 certification, there was a high rate of employee
turnover that approximated 25–30 percent yearly, and that she
was aware that less then a majority of the bargaining unit em
ployees paid dues to the Union.
Shortly after Thompson resigned as the on-site union repre
sentative, Kucsan and Thompson had a telephone conversation.
During that conversation, Thompson apprised Kucsan that the
employees did not want the Union and a petition was being
distributed among the employees to remove the Union as the
bargaining representative.
Thompson also informed Kucsan
that the Union did not make a difference, it wasn’t worth pay
ing the union dues for the representation that was given, and it
was hard to get hold of the union representatives.
Murphy testified that in April 2000, she had a telephone
conversation with Thompson wherein Thompson told her that
we are putting together a document because we no longer want
the Union. Murphy immediately informed Kucsan of this con
versation and told her that she believed the employees wanted
to get rid of the Union. Several months later, sometime in the
summer of 2000, Murphy had a second telephone conversation
with Thompson. During this conversation, Thompson informed
Murphy that the employees mistakenly submitted a document
to the Union rather then the Board that they no longer wanted
to be represented by the Union.
sions of its agreement to seek the termination of an employee for
the failure to pay required dues (GC Exh. 3, art. 2, sec. 2.4).
3. The Union convened two meetings in August 2000 of bargain
ing unit employees to determine if the employees desired to have
the Union continue as the bargaining representative. Of the 22/23
employees in the bargaining unit, only 3 employees attended the
first meeting and 10 employees attended the second meeting.
4. Since January 1, the Union has not had an elected delegate to
represent the bargaining unit employees on-site.
5. During the term of the parties’ collective-bargaining agree
ment, a large number of employees have declined union represen
tation at disciplinary investigatory meetings.
6. During informal contacts between bargaining unit employees
and supervisors, employees have routinely complained that the
Union does not respond to requests for information or assistance
and employees have stated to supervisors that they do not know
why they have a union and do not support the presence of a union.
In July 2000, Kucsan testified that Thompson asked her how
to file a complaint against the Union because the employees
were paying dues to the Union but not getting any results. Kuc
san instructed Thompson to contact the Board and provided the
telephone number of the Philadelphia office.
House Coordinator Rossi testified that several staff members
came to her and expressed dissatisfaction concerning their ef
forts to contact the Union. In this regard, in July 2000, bargain
ing unit employee Lucy Morrison informed her that she tried to
contact the Union several times but she gave up because she
could not get hold of anybody. Employee Karen DiVenno told
Rossi that the Union was not necessary and that she was op
posed to the Union. Additionally, DiVenno informed Rossi
that she attempted to contact the Union a number of times but
nobody got back to her. Lastly, employee Tanisha Moore ap
prised Rossi that it was not fair that she was paying dues to the
Union while others in her peer group were not contributing to
the Union.
House Coordinator Mount testified that employee’s Thomp
son and Arthur Garglahn complained to her about the necessity
of paying dues and not being represented by the Union. Addi
tionally, a number of staff members complained to Mount
about experiencing trouble in getting in contact with the Union.
Mount also testified that it was her belief that the Union did not
represent a majority of the bargaining unit due to a number of
employees not knowing about the Union and their failure to
request union representation at disciplinary investigatory meet
ings.
Between July and September 30, Respondent held four su
pervisory meetings wherein the status of the Union was dis
cussed. All of the above supervisors shared common informa
tion about the Union and discussed telephone and personal
conversations they had with bargaining unit employees con
cerning the Union. A consensus was reached that the employ
ees no longer wanted the Union as its bargaining representative
and it was apparent to the supervisors that the Union no longer
represented a majority of the employees. Accordingly, the
Respondent determined to withdraw recognition from the Un
ion on October 2, the first workday after the parties’ collective-
bargaining agreement expired. It also provided a memorandum
to all employees on October 2, about the status of the Union
and Respondent’s position that the Union should be decertified
(R. Exh. 1).
The record demonstrates that both parties adhered to the pro-
visions of the agreement during its term. In this regard, infor
mation requests were processed (GC Exh. 8 and 9, R. Exh. 2),
grievances were submitted and acted upon (GC Exh. 30, 31,
and 32), and disciplinary investigatory meetings were held and
attended by Union representatives (GC Exh. 15, 16, and 17).
Indeed, in certain circumstances, after the expiration of the
parties’ agreement on September 30, the Union was invited to
and attended disciplinary investigatory meetings.
D. Analysis
1. Refusal to bargain
In Allentown Mack Sales & Service v. NLRB, 522 U.S. 359
(1988), the Supreme Court addressed the Board’s good-faith
HORIZON HOUSE DEVELOPMENTAL SERVICES
31
doubt standard. The Court held that the Board’s “good-faith
doubt” standard must be interpreted to permit the employer to
act where it has a “reasonable uncertainty” of the union’s ma
jority status, rejecting the Board’s argument that the standard
required a good-faith disbelief of the union’s majority support.6
In order to establish good-faith reasonable uncertainty, em
ployers may present antiunion petitions signed by unit employ
ees and firsthand statements by employees concerning personal
opposition to an incumbent union. Likewise, employers may
submit unverified statements regarding other employees’ anti-
union sentiments and employees’ statements expressing dissat
isfaction with the union’s performance as the bargaining repre-
sentative.7
In Henry Bierce Co., 328 NLRB 646 (1999), the Board
found that certain factors that the employer relied on in with-
drawing recognition—newly hired employees’ failure to join
the union, some employees’ failure to authorize dues checkoff,
and the union’s failure to file grievances (absent knowledge of
the employer’s breaches of contract), appoint a steward, or
submit a tentative agreement to the employees for ratification-
were insufficient to engender a good-faith uncertainty.
In the subject case, the Respondent argues that it lawfully
withdrew recognition from the Union when the contract expired
and under Allentown Mack was not required to negotiate a suc
cessor contract.8 Here, the record demonstrates that the Re
spondent did continue to observe the terms of the contract and
that it did not withdraw recognition until after the contract ex-
pired.9
6 On March 29, 2001, the Board issued its decision in Levitz Furni
ture Co., 333 NLRB 717. It determined that after careful consideration,
there are compelling legal and policy reasons why employers should
not be allowed to withdraw recognition merely because they harbor
uncertainty or even disbelief concerning unions’ majority status. The
Board held that an employer may unilaterally withdraw recognition
from an incumbent union only where the union has actually lost the
support of the majority of the bargaining unit employees. It overruled
Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as they
permit withdrawal on the basis of good-faith doubt. The Board stated,
however, that it shall not apply the new withdrawal of recognition
standard in pending cases. Accordingly, the subject case will be evalu
ated under the Allentown Mack reasonable uncertainty standard.
7 The Board continues to disregard turnover among employees in the
bargaining unit. Indeed, it adheres to the established presumption that
newly hired employees support the union in the same proportion as the
employees they have replaced. NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 779 (1990). Likewise, the Board disregards indica
tions of union inactivity, such as failing to appoint stewards or to file
grievances, unless they are the subject of employees’ complaints.
8 If an employer establishes a good-faith doubt (uncertainty) as to the
union’s continued majority support within a reasonable time before the
contract expires, the employer may lawfully refuse to negotiate a suc
cessor contract and announce that it will not recognize the union when
the contract expires, provided it complies with the existing agreement.
9 Bendig admitted that the Respondent did not withdraw recognition
during the term of the agreement. Likewise, she acknowledged that the
Respondent complied with the provisions of their agreement concern
ing grievance processing, responding to requests for information and
permitting union representatives to attend disciplinary meetings repre
senting bargaining unit employees.
Under these circumstances, the allegations in paragraph 6 of
the complaint that the Respondent refused to bargain with the
Union for a new collective-bargaining agreement must be dis
missed if the Respondent lawfully withdrew recognition from
the Union.
Turning to the Respondent’s affirmative defense that it law-
fully withdrew recognition from the Union based on its good–
faith uncertainty concerning the Union’s majority support, I
find that it was privileged to do so for the following reasons.
Both Kucsan and Murphy credibly testified that in separate
telephone conversations with Thompson, they were informed
that the employees no longer wanted the Union to represent
them and the employees were circulating a memorandum to this
effect that was mistakenly filed with the Union instead of the
Board.10 Rossi testified that three individual employees (Mor
rison, DiVenno, and Moore) apprised her that the Union was
not necessary, that the employees were not getting representa
tion and it is not fair to be required to pay dues and not receive
representation. Likewise, Mount testified that two other em
ployees (Thompson and Garglahn) complained to her that they
were upset about paying dues and not being able to contact the
Union. Significant in my determination that the Respondent’s
action in withdrawing recognition was privileged, was the Gen
eral Counsel and Charging Party’s failure to call Thompson to
rebut the testimony of Kucsan, Murphy, and the other supervi
sors that the employees no longer desired the Union to repre
sent them. Likewise, no other bargaining unit employees were
called by the General Counsel or the Charging Party to testify
that a petition was not circulated among employees that they no
longer wanted the Union to represent them. Additionally, no
employees were called to testify that they did not inform Re
spondent supervisors that they were dissatisfied with the Union
and found their representation lacking in many areas. While
the Respondent presented additional evidence to buttress their
reasons for withdrawing recognition from the Union including
employee turnover, failure to appoint a steward and some em
ployees’ failure to authorize dues checkoff, I have not consid
ered those examples in reaching my conclusions relying on
Board precedent that rejects such evidence. Rather, I find that
the firsthand statements by employees concerning personal
opposition to the Union to be conclusive evidence that contrib
uted to the Employer’s good-faith uncertainty in this case.
Therefore, I conclude that the Respondent was privileged to
withdraw recognition from the Union after the expiration of the
parties’ agreement on September 30. Thus, I also find that the
allegations in paragraph 6 of the complaint must be dismissed.
2. Refusal to provide information
The General Counsel alleges in paragraph 7 of the complaint
that the Respondent on August 14 and 30 refused to furnish
certain information to the Union.
10 Thompson, unlike the employee in Scepter Ingot Casting, Inc.,
331 NLRB 1509 (2000), who told an employer that she did not feel
employees continued to desire representation, previously held the posi
tion of union delegate (steward) and was the spokesperson for the bar-
gaining unit employees. Moreover, Thompson informed two independ
ent management representatives that the employees no longer wanted
or needed the Union to represent them.
32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Since the Union requested the information in order to pre-
pare for negotiations for a successor agreement (GC Exh. 10
and 11), and I have determined that the Respondent under
Allentown Mack had no obligation to negotiate a successor
agreement, I recommend that the allegations concerning a re
fusal to provide information be dismissed.
3. Refusal to process grievances
The General Counsel alleges in paragraph 8 of the complaint
that the Respondent since August 30 has refused to process
three class action grievances.
The record demonstrates that on September 6, Respondent
responded to the Union and requested that it provide specifics
of when contract violations have occurred. Bendig admitted
that the Union did not respond to this request. Likewise, it did
not elevate the grievances to the next step of the grievance pro
cedure. The parties’ agreement, however, permits the Union to
elevate the grievance even if the Employer does not answer a
grievance.11 Under the particular circumstances of this case, I
11 Sec.14.2 of the parties’ agreement (GC Exh. 3), states: “Failure on
the part of the Employer t o answer a grievance at any step shall be
find that the Respondent’s September 6 response, coupled with
the Union’s failure to elevate the grievances to the next step in
the procedure precludes a finding that the Respondent violated
Section 8(a)(1) and (5) of the Act. Accordingly, I recommend
that the allegations in paragraph 8 of the complaint be dis
missed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent did not engage in violations of Section
8(a)(1) and (5) of the Act by refusing to negotiate for a new
collective bargaining agreement, refusing to provide informa
tion and refusing to process grievances.
[Recommended Order for dismissal omitted from publica
tion.]
considered a denial by the Employer and shall allow the employee to
proceed to the next step.” Additionally, Bendig acknowledged that the
Respondent corrected one of the three grievances shortly after it was
filed.