Central Washington Hospital

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central Washington Health Services Association d/b/a Central Washington Hospital and North- west Economic Council, Local 900, United Food and Commercial Workers International Union, AFL-CIO-CLC. Case 19-CA-13776 31 March 1986 DECISION AND ORDER By MEMBERS DENNIS, JOHANSEN, AND STEPHENS On 28 October 1982 Administrative Law Judge Richard D. Taplitz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief and a brief in support of the decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Central Washington Health Services Association d/b/a Central Washington Hospital, Wenatchee, Wash- ington, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' In affirming the judge's findings of unlawful interrogations, we note that he carefully examined the "totality of the circumstances" surround- ing the Respondent's questioning of three employees See Rossmore House, 269 NLRB 1176 (1984), affd 760 F 2d 1006 (9th Cir, 1985) In affirming the judge's conclusion that the Respondent violated Sec 8(a)(5) and (1) of the Act by withdrawing recognition, Member Dennis does not rely on his citation of Dresser Industries, 264 NLRB 1088 ( 1982), and intimates no views regarding the issues presented in that case Member Dennis observes that apart from the unfair labor practices taint- ing the RM petition, the Respondent cannot justify the withdrawal of recognition based on its own petition See Flex Plastics, 262 NLRB 651 (1982), which the judge also cited George L Hamano, Esq., for the General Counsel. Bruce Paul Bischof Esq., of Sunriver, Oregon, for the Respondent. Judith A. Lonnquist, Esq. (During, Webster & Lonnquist), of Seattle, Washington, for the Union. DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried in Wenatchee, Washington, on May 20, 1982. The charge and amended charge were filed re- spectively on July 28 and August 21, 1981, by Northwest Economic Council, Local 900, United Food and Com- mercial Workers International Union, AFL-CIO-CLC (the Union or the Charging Party). The complaint, which issued on September 15, 1981, alleges that Central Washington Health Services Association d/b/a Central Washington Hospital (Respondent or the Hospital) vio- lated Section 8(a)(5) and (1) of the National Labor Rela- tions Act. Issues The primary issues are: 1. Whether the Company's refusal to bargain with the Union on and after July 27, 1981, constituted a violation of Section 8(a)(5) and (1) of the Act, or whether the fail- ure to bargain was lawful because it was based on Re- spondent's objectively based good-faith doubt that the Union continued to represent a majority of the employ- ees in the bargaining unit after the expiration of a collec- tive-bargaining agreement. 2. Whether Respondent violated Section 8(a)(1) of the Act by promising employees benefits if they rejected the Union, by encouraging and assisting employees in circu- lating and filing a petition to decertify the Union and by similar conduct. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Respondent, and the Union. On the entire record of the case and from my ob- servation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Washington nonprofit corporation with an office and place of business in Wenatchee, Wash- ington, where it is engaged in the business of operating a hospital. It was stipulated that Respondent is a health care institution within the meaning of Section 2(14) of the Act. During the 12 months immediately preceding is- suance of the complaint Respondent had gross sales of goods and services valued at in excess of $500,000. During the same period of time, Respondent purchased and caused to be transferred and delivered to its facilities in Washington, goods and materials valued in excess of $50,000 directly from sources outside of Washington, or from suppliers within Washington which in turn obtained such goods and materials directly from sources outside of Washington. The complaint alleges, the answer admits, and I find that Respondent is an employer en- gaged in commerce wihtin the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. 279 NLRB No. 11 CENTRAL WASHINGTON HOSPITAL 61 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Collective-Bargaining Relationship Between Respondent and the Union On October 5, 1979, the Union was certified by the Board as the exclucive collective-bargaining representa- tive of Respondent's employees in the following bargain- ing unit: All technical employees classified as medical labora- tory technicians, respiratory therapy technicians, ECG technicians, pharmacy assistants, radiology technologists, darkroom technicians, radiology re- ceptionists, and operating room technicians, exclud- ing all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act and all other employees. Pool employees, who are casual employees who substi- tute for regular employees, are not included in that bar- gaining unit. On June 10, 1980, Respondent and the Union entered into a collective-bargaining agreement that was effective from that date through June 30, 1981. Bargaining for a successor contract began on June 4, 1981. Further collec- tive-bargaining sessions were held by Respondent and the Union on June 22, June 23, and July 13, 1981. At that July 13 meeting, Respondent and the Union agreed to hold the next bargaining session on July 28, 1981. On July 27 Respondent canceled that meeting and on July 31, 1981, Respondent filed a petition for an election in Case 19-RM-1721. The parties have stipulated and I find that on or about July 27, 1981, Respondent withdrew recognition from the Union as the collective-bargaining agent of its employees in the bargaining unit, set forth in paragraph 5, of the complaint and since that time Re- spondent has refused to negotiate for a collective-bar- gaining agreement, even though Respondent and the Union have dealt together with regard to the limited purpose of implementing some wage adjustments. On August 11, 1981, R. Michael Smith, an attorney for the General Counsel, sent a letter to Respondent and the Union informing them that a hearing on the petition would be scheduled if all parties did not agree to an election. There was no agreement and no election. On September 16, 1981, the Acting Regional Director for Region 19 of the Board dismissed the petition after find- ing that Respondent's agents "encouraged its employees to circulate and file a petition seeking to decertify the Union, and engaged in conduct to undermine the Union's majority status." Respondent did not appeal that dismis- sal. Respondent has contracts with the Washington State Nursing Association and with the Licensed Practical Nursing Association in other bargaining units. During the spring of 1981, the Union was attempting to organize the service and maintenance employees at Respondent. The Union lost that election and no objections were filed. Nor were any unfair labor practices charges filed in connection with that election. B. The Alleged Efforts ofRespondent to Undermine the Union 's Majority Status In the early spring of 1981 Respondent's personnel di- rector, Dennis Key,' was approached by some employ- ees who asked him questions about terminating their membership in the Union. About that time several of the supervisors told Key that they had been approached with questions from employees about the cancellation of employee dues and that they did not know how to answer. Respondent contacted its attorney , Bruce Bis- chof, and asked him to visit the hospital to provide infor- mation to supervisors so that they could answer ques- tions regarding cancellation of membership and other al- ternatives for representation . Thereafter Bischof held meetings with supervisors. In mid-May 1981 Glen Hawkins, a supervisor in the X-ray department,2 had a conversation with employee Dennis Matthews. It occurred during working hours in Hawkins' office. Previously Matthews had told Hawkins that Matthews had strong views about unions and that he would resign before becoming a member of a bargain- ing unit. Matthews had asked Hawkins concerning his rights with regard to avoiding involvement with the Union. In the conversation in mid-May, Hawkins told Matthews that there would be a meeting to inform em- ployees of their options and of what could be done if they did not want to have the Union . A few days later Matthews met with Hawkins and Bischof in a small con- ference room next to the laboratory. No one else was present. Bischof explained what had to be done if a person wanted to circulate a petition to decertify the Union. He told Matthews that the Hospital could not ask anyone to do it and that he was just there to give infor- mation. He also gave Matthews the telephone number of the National Labor Relations Board in Seattle and said that if there were any questions, to contact them . Bischof also said that the purpose of the meeting was an educa- tional one-to let people know what they could do; that he was there to say what the law was regarding union and nonunion; and that it was unlawful for him or the Hospital to make any statements at all concerning what the Hospital could or could not do. Hawkins said some- thing to the effect that the employees were not locked into the Union.3 Matthews did not take any action with regard to an antiunion petition . However, another employee, Bill Davies, did. Davies approached his supervisor, Humm- rich, and asked what they would have to do to have an election. Hummrich told him that it would require a peti- tion being signed by a number of employees and that the petition would have to be submitted to the Board. Hummrich also said that he was not encouraging Davis to take that step but that if Davies wanted information, he could obtain it for him. A day or two later, Humm- i It is admitted and I find that Key was a supervisor within the mean- ing of the Act 2 It is admitted and I find that Hawkins was a supervisor within the meaning of the Act 3 These findings are based on the credited testimony of Matthews and Hawkins Hawkins' description of the incident was substantially less de- tailed than Matthews', but was basically consistent with it 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rich told Davies that he had the answer to some of his questions. Hummrich also said that the names of employ- ees who signed the petition would be confidential and that the petition would have to be sent to the Board. Davies then drew up what he referred to as a decertifi- cation petition. He showed it to Hummrich and asked him to see if it was worded properly.4 Hummrich replied that it looked like good wording. Davies then asked Hummrich for permission to use the Xerox machine to make copies. Hummrich agreed and Davies ran off a number of copies. Davies circulated the petitions among the employees on company time and company property. Respondent was aware of his activities. He continued to obtain signatures on the petitions during 2 weeks in July 1981. He spoke to his supervisors, Troy and Gash, who told him that he could mail the petitions to the Board or, if he wished, they could do it for him. Davies gave the petition to Key and Troy. Respondent them filed a rep- resentation petition (employer petition) in Case 19-RM- 1721. The "petition" signed by the employees was sent to the Board with the employer petition.5 As set forth above, on September 16, 1981, the Employer's petition was dismissed by the Acting Regional Director on the ground that Respondent's agents had encouraged em- ployees to circulate and file a petition seeking to decerti- fy the Union and had engaged in conduct to undermine the Union's majority status. About the time that Davies was circulating his peti- tions among the employees, Respondent's shift supervi- sor, Robert Orach,e was engaging in a series of conver- sations with employees in an effort to get them to dis- avow the Union. He spoke to employee James Rosenber- ger on at least three separate occasions. Orach and Rosenberger were friends.' On July 11, 1981, Orach spoke to Rosenberger during work in the conference room of the respiratory therapy department with no one else present. Orach asked Rosenberger how negotiations were going with the Union and Rosenberger replied that he did not know because he was not on the committee. Orach then said that he felt the Hospital had made mis- takes in the past in its relations with employees and that 4 The petition read To National Labor Relations Board From Employee Central Washington Hospital (Northwest Economic Council Members) Dear Sir: As an employee of Central Washington Hospital under the North- west Economic I feel that I have not properly been represented by the N.E.C I would like a secret ballot election to decide if N E C representation should remain at Central Washington Hospital signed Date s The terminology of the parties has caused some confusion The peti- tion before the Board was not a decertification petition A decertification petition, which has an "RD" identification, is a Board petition filed by employees In the instant case Respondent filed an employer petition, which has an "RM" designation, and is filed by an employer The "peti- tions" signed by employees were simply evidence submitted in connec- tion with the employer petition 6 It is admitted and I find that Orach was a supervisor within the meaning of the Act Rosenberger testified that he felt that Orach was expressing his own opinion but he also averred that Orach was his shift supervisor and in that context was part of management if the employees would get rid of the Union, the employ- ees would be able to get a better deal with the Hospital on their own. The second conversation took place on July 17 In the same place, during the work shift with no one else present . Orach told Rosenberger that he felt the attitude of the Hospital changed toward employees, that the Hospital had made mistakes in the past dealing with employees, and that if the employees would get rid of the Union, they would be able to negotiate with the Hos- pital and get a better deal. The third conversation took place on July 25 in the same location. This time Supervi- sor Joe Pokrifchak was also present. Orach again said that if the employees got rid of the Union, they would be able to bargain with the Hospital and get a better deal. Orach asked Pokrifchak whether he agreed and Pokrifchak said he did. In one of these conversations, Orach told Rosenberger that a petition was being circu- lated to decertify the Union.8 Orach also spoke to employee Roy Johnston. About July 18, 1981, Johnston and Orach had a conversation in the respiratory therapy department with no one else present. Orach told Johnston that what he was about to say was off the record and just between the two of them. He then said that the Hospital had seen the error of its ways in not talking to employees before they elected the Union to represent them and that the Hospital was ready to make the employees a better deal than the one the Union was trying to get for them. Orach also said that the Hospital was ready to talk to them about wages and working conditions and that, in the light of the change in attitude of the administration, the employees were foolish to continue to let the Union represent them. In the course of that conversation, Orach asked how the negoti- ations were going. Johnston answered that they were just going. That afternoon Orach spoke to Johnston once again in the hospital cafeteria. Rosenberger and Pokrif- chak were present. Orach said that the Hospital was ready to negotiate directly with the employees if the Union did not represent them and the Hospital was ready to make employees a better deal than the one the Union was trying to get for them. Orach spoke to John- ston on several occasions on July 19. Orach said that the administration was ready to deal directly with the em- ployees, that they had seen the error of their ways in not negotiating with them before employees decided to be represented by the Union, and that they were ready to make a better deal. The next conversation occurred on July 25. Orach said the Hospital was ready to negotiate directly with the employees and offer them a better deal than the Union was trying to negotiate for them, and that the employees were foolish to continue to allow the Union to represent them. Once again Orach asked how the contract negotiations were going. Johnston consid- ered himself a good friend of Orach. Johnston averred that Orach indicated that in those conversations he was presenting his personal view. However, Johnston also 8 These findings are based on the testimony of Rosenberger which was fully credible Orach did not testify CENTRAL WASHINGTON HOSPITAL averred that Orach was a supervisor representing man- agement.9 During the time that Davies was passing out the peti- tion, Respondent's assistant chief technologist , Leonard M. McNamara, also spoke to employees about the Union. Sometime in July 1981, when the petition was being circulated, he asked Debbie Bryant how she felt about the communications between herself and her union. He asked her whether she understood what was going on with her union and she replied that she did not. He then asked her if she knew what had to happen for the Hospital to tell its side of the story and she said that she did not . He said that there was a person circulating a petition to let the Hospital tell its side of the story, but that it did not mean the employees were going to get rid of the Union. He told her that Davies was circulating the petition and that he might approach her. McNamara and Bryant are friends and the conversation took place in McNamara's office at the hospital during Bryant's regu- lar work shift. McNamara also spoke to employee Steve Ireland. That conversation took place 3 or 4 weeks before the conversation with Bryant. He told Ireland that without the Union there would be better communication with the Hospital as there would be no third party; that the Hos- pital had made some mistakes in the past and had learned by them; that the Hospital would like to have the ability to represent employees again; that in order for the Hos- pital to even approach a union person, the employees would have to petition the NLRB; and that a petition would not be filed with the Board until one-third of the unit employees signed the petition and gave it to the Board. McNamara and Ireland were friends and the con- versation took place in McNamara's home.' ° C. The Respondent's Assertion That It Had a Good- Faith Doubt Concerning the Union's Majority Status As is set forth above, Respondent withdrew recogni- tion from the Union on July 27, 1981, and has refused to bargain with the Union since that time." Respondent's claim that it had a good-faith doubt concerning the Union's majority status is based on the testimony of Dennis Key, Respondent's personnel director. He averred that his belief with regard to a lack of union ma- jority was based on the petition signed by employees that had been submitted by Davies plus information he ob- tained from a supervisor and from an employee. In March or April 1981 Supervisor Joann Driscoll told him that three or four employees in the operating room were dissatisfied with the Union and that Irma Smith and Linda Harvey were not in support of the Union. On a number of occasions employee Dennis Matthews told Key that if Respondent entered into a union shop or a mandatory union membership agreement, Matthews might have to terminate his employment with the Hospi- 9 These findings are based on the testimony of Johnston which is fully credible As indicated above, Orach did not take the witness stand 10 These findings are based on the credible testimony of McNamara " Respondent and the Union have dealt together for the limited pur- poses of adjusting wages but Respondent takes the position that it has re- fused to bargain and that it has done so lawfully as there was no duty to bargain on and after July 27, 1981 63 tal. Key summarized his testimony by saying that he was aware of 15 or 16 names on the petition (later Respond- ent's counsel indicated that there were 15) plus the two employees in the operating room and Matthews. Howev- er, the petitions are not in evidence and Respondent cannot rely on them to base a claim of good-faith doubt of union majority.' 2 Respondent took the position that the Hospital had given a commitment not to divulge the names on the petitions . As a result, Respondent chose not to offer the petitions in evidence. Respondent made an offer to prove that if Key were allowed to testify, he would aver that he reviewed the decertification petitions submitted by Davies; that the pe- titions showed 15 names; that those names were checked against payroll records; and that all 15 employees were currently employed by the Hospital. The offer or proof indicated that Key would not testify about the individ- uals but only the cumulative number in order to retain the confidentiality of the names on the petitions. I reject- ed the proffered evidence. The names were needed by the Charging Party to allow for verification and effec- tive cross-examination. Though the petitions were given to the Board in the representation case, the Charging Party would have no access to them. The Charging Party, as a full party to the case, does have the right to cross-examine. The Charging Party would also need the names to be able to inquire into the circumstances under which the petitions were signed, the authenticity of the signatures, the assertion that the people who signed were on the payroll list, and many other matters. Respondent filed an interim appeal to that evidentiary ruling. On June 10, 1982, the Board denied the appeal without prej- udice to Respondent's right to renew its contention through the filing of an appropriate exception. D. Analysis and Conclusions 1. The Respondent's efforts to undermine the Union a. The promise of benefits and the interrogation On July 11, 1981, Supervisor Orach asked employee Rosenberger how negotiations were going . In the same conversation Orach told Rosenberger that if the employ- ees would get rid of the Union, they would be able to get a better deal with the hospital on their own . On July 17 he told Rosenberger substantially the same thing. On July 25, in the presence of another supervisor, Orach again spoke to Rosenberger about getting rid of the Union and obtaining a better deal from Respondent. The other supervisor, Pokrifchak, agreed with Orach. In one of those conversations, Orach told Rosenberger that a petition was being circulated to decertify the Union. Orach's remarks to Rosenberger constituted a clear promise of benefits if the employees would reject the Union. As such, they were in violation of Section 8(a)(1) 12 The testimony and evidence with regard to Respondent's payroll list on the critical date is far from clear Even if the petitions had been of- fered and received in evidence, there would have been a serious doubt whether the names on the petition, plus the three Key testified to, were sufficient in number to indicate that the Union did not have majority sup- port 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. Western Truck Services, 252 NLRB 688, 691 (1980); Wm. Chalson & Co., 252 NLRB 25, 33 (1980). By asking Rosenberger how the negotiations were going, Orach was impliedly asking Rosenberger whether Rosen- berger agreed with the Union's actions in negotiations. That involved Rosenberger's union sympathies. If Orach were really interested in what was happening at the ne- gotiating table, he would have asked Respondent's repre- sentative to the bargaining table rather than Rosenber- ger. In the context of Orach's unlawful promise of bene- fits if the employees rejected the Union, I fmd that the interrogation of Rosenberger concerning his union sym- pathies also violated Section 8(a)(1) of the Act. Marines' Memorial Club, 261 NLRB 1357 (1982); Paul Distributing Co., 264 NLRB 1378 ( 1982). On July 18, 19, and 25 Orach spoke to employee John- ston. In those conversations he told Johnston that the Respondent was ready to talk to them about wages and working conditions, that the employees were foolish to continue to let the Union represent them, and that the Hospital was ready to make the employees a better deal than the one the Union was trying to get for them. Orach also asked Johnston how the contract negotiations were going. Orach's remarks to Johnston constituted an unlawful promise of benefits if employees rejected the Union. They also constituted coercive interrogation con- cerning an employee's union sympathies. Sometime in July 1981, Supervisor McNamara asked employee Bryant how she felt about the communications between herself and her union , and whether she under- stood what was going on with her union . He spoke of the Hospital telling its side of the story and of Davies' circulation of a petition. McNamara 's questions to Bryant called for a response from Bryant relating to her feelings about the Union. In the context of the overall conversa- tion and the reference to the circulation of the decertifi- cation petition, I find that those questions constituted co- ercive interrogation concerning her union sympathies. b. Respondent's involvement with the decertification petitions Supervisor Key testified that some employees had spoken against the Union and he therefore contacted Re- spondent's attorney, Bruce Bischof. There is no indica- tion that any employees spoke about a decertification pe- tition. The first indication in the record that that term was mentioned was in the conversation that Attorney Bischof and Supervisor Hawkins had with employee Dennis Matthews. Matthews, who had expressed dis- pleasure with the Union, was invited by Hawkins to attend a meeting. The meeting consisted of only Mat- thews, Hawkins, and Bischof. At that meeting Bischof explained what had to be done if a person wanted to cir- culate a petition to decertify the Union. He also told Matthews that the Hospital could not ask anyone to do it and that he was just there to give information . He gave Matthews the telephone number of the National Labor Relations Board. It thus appears that the initial idea of the decertification petition came from Respondent. There was only a slightly veiled suggestion from Bischof that Matthews be the one to circulate the petition . Matthews did not take up the bait. Sometime in June 1981, Supervisor McNamara spoke to employee Steve Ireland . He told Ireland that without the Union there would be better communication with the Hospital, that the Hospital would like to have the ability to represent the employees again, and that in order for the Hospital to even approach a union person, the em- ployees would have to petition the NLRB . Again, it was a veiled suggestion from Respondent that an employee circulate such a petition . Ireland did not act on the sug- gestion. Employee Bill Davies was not as retiring as Matthews and Ireland. Toward the end of June 1981 , Davies ap- proached his supervisor, Hummrich, and asked what would we have to do to have an election . Hummrich told him that it would require a petition being signed by a number of employees and that the petition would have to be submitted to the Board . A few days later Humm- rich answered questions that Davies asked concerning the petition and Hummrich said that the names of em- ployees who signed the petition would be confidential. When Davies drew up a decertification petition, he showed it to Hummrich and asked whether it was prop- erly worded . Hummrich replied that the wording looked good. Hummrich granted Davies' request to use the Xerox machine to make copies. For about 2 weeks in July Davies circulated the petition among employees on company time and property with Respondent's knowl- edge. He gave the decertification petition back to his su- pervisor and Respondent used it in connection with its employer petition in Case 19-RM-1721 as evidence that it had a good-faith doubt of the Union 's majority. Ministerial acts by an employer that help employees in processing a decertification petition do not necessarily violate the Act. Times-Herald, 253 NLRB 524 (1980). Even ministerial acts can be unlawful where they are done in a context which is not free of coercive conduct. D & H Mfg. Co., 239 NLRB 393, 403 (1978). When an employer instigates and promotes a decertification peti- tion or another union repudiation document , it interferes with the rights of employees under Section 7 of the Act and therefore violates Section 8 (a)(1) of the Act. Texaco, Inc., 264 NLRB 1133 (1982); Antonopoulos, Inc., 261 NLRB 409 (1982); Nassau Glass Corp., 222 NLRB 792 (1976); Royal Himmel Distilling Co., 203 NLRB 370, 375 (1973). In the instant case Respondent instigated the de- certification petitions by originally suggesting it to em- ployees, a supervisor committed the Hospital to keep the names on the petitions confidential , the supervisor read over the proposed decertification petition and indicated his approval, a supervisor permitted the use of the Hos- pital Xerox equipment to duplicate the decertification pe- titions, and Respondent permitted an employee to circu- late the decertification petitions on company time and property. While the petitions were being circulated, a su- pervisor unlawfully interrogated employees and prom- ised benefits to them if they rejected the Union. In one conversation in which such a promise was made, the su- pervisor said that the decertification petitions were being circulated. Respondent had involved itself with the de- certification petitions well beyond any permissible bounds. I find that Respondent instigated , assisted, and CENTRAL WASHINGTON HOSPITAL encouraged the circulation of the decertification petitions in violation of Section 8(a)(1) of the Act. 2. The refusal to bargain Upon expiration of a collective-bargaining agreement or upon the expiration of a certification year, both of which were present in the instant case, an employer may not withdraw recognition and refuse to bargain with an incumbent union unless certain circumstances exist. t 3 Those circumstances were recently reiterated in Robert- show Controls Co., 263 NLRB 958 (1982), in which the Board held: [W]e agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) by refusing to bargain with the Union. We have consistently held that a union enjoys a presumption of continuing ma- jority status In order to rebut that presumption, an employer must either show that the union in fact no longer retains majority support, or that its refusal to bargain was based on a reasonably grounded doubt as to the union's majority status. As to a reasonably grounded doubt, the doubt must be based on objec- tive considerations and must be raised in a context free of unfair labor practices. Sierra Development Company d/b/a Club Cal-Neva, 231 NLRB 22, 23 (1977), enfd. 604 F.2d 606 (9th Cir. 1978). In the instant case there is no evidence in the record to support a finding that the Union in fact no longer re- tained majority support. Nor has Respondent established that it had a reasonably grounded doubt based on objec- tive considerations that the Union no longer retained ma- jority support. The only probative evidence in the record with regard to that matter was that one employee indicated to Personnel Director Key that he did not want the Union and that a supervisor reported to Key that two other named employees had expressed displeas- ure with the Union. As there were about 38 employees in the bargaining unit, the expressions of those three em- ployees could not possibly have led to a good-faith doubt on Respondent's part. The petitions signed by some of the employees were not offered or received in evidence and cannot be given any weight. Moreover, even if those petitions could be relied on by the Re- spondent. Respondent still could not raise a good-faith doubt concerning union majority because such a doubt must be raised in a context free of unfair labor prac- tices.14 As is found above, Respondent's unlawful con- duct related directly to the obtaining of the employee pe- titions. When Respondent's involvement in those peti- tions is considered in the context of Supervisor Orach's promise of benefits to employees if they rejected the Union, it is reasonable to believe that the Respondent's 13 IT Corp, 263 NLRB 1183 (1982), Pennco, Inc, 250 NLRB 716 (1980), supplementing 242 NLRB 467, Bartenders Assn of Pocatello, 213 NLRB 651 (1974) 14 As the Board held in Guerdon Industries, 218 NLRB 658 at 659 (1975) As to a reasonably based doubt, two prerequisites for sustaining that defense are that the asserted doubt must be based on objective con- siderations and such doubt must be raised in a context free of unfair labor practices [Footnotes omitted ] 65 own unlawful and coercive conduct contributed to the execution of those petitions and that the petitions were therefore not true and uncoerced expressions of the em- ployees' views." s See also Mark Twain Marine Industries, 254 NLRB 1095, 114 (1981); Nevada Lodge, 227 NLRB 368, 377 (1976), enfd. 584 F.2d 293 (9th Cir. 1978). In sum I find that Respondent has not established that the Union in fact lost majority support or that Respond- ent had a good-faith doubt about the Union's majority status. Moreover, I find that Respondent's claimed good- faith doubt was not raised in a context free of unfair labor practices. Respondent argues that its good-faith doubt was estab- lished by its filing of a petition for an election in Case 19-RM-1721 which was supported by the petitions signed by employees. That argument is unpersuasive. In Telautograph Corp., 199 NLRB 892 (1972), the Board held that a decertification petition (an RD petition which is filed by employees) which is supported by an adequate showing of interest raises a question concerning repre- sentation. Under Telautograph, an employer and incum- bent union could continue to administer their contract and to process grievances but the employer could not continue to bargain collectively with that union. Howev- er, in Dresser Industries, 264 NLRB 1088 (1982), the Board specifically overruled Telautograph, stating: We hold that the mere filing of a decertification pe- tition will no longer require or permit an employer to withdraw from bargaining or executing a con- tract with an incumbent union. Moreover, in the instant case the employer filed a repre- sentation petition (an RM petition). No "RD" petition was filed by the employees. In Flex Plastics, 262 NLRB 651 at 657 (1982), the Board adopted the administrative law judge's decision which held in part: Respondent cannot rely upon its own RM peti- tion as establishing a reasonably good-faith doubt of the Union's continued majority status. An RM peti- tion filed to question a previously certified union's continued majority status must, itself, be supported by objective considerations indicating such a loss. It is therefore a "bootstrapping" argument for an em- ployer to assert that the mere filing of an RM peti- tion establishes the necessary good-faith doubt. United States Gypsum Co., 157 NLRB 652 (1966). See also Schmutz Foundry, [251 NLRB 1494 (1980)], and cases cited therein at 1499. In addition, the employer's petition was dismissed by the Acting Regional Director because of Respondent's un- lawful conduct. As found above Respondent's unfair labor practices tainted the employee petitions in such a 14 As the Board held in Guerdon Industries, 218 NLRB 658 at 659 (1975) As to a reasonably based doubt, two prerequisites for sustaining that defense are that the asserted doubt must be based on objective con- siderations and such doubt must be raised in a context free of unfair labor practices [Footnotes omitted ] 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way that Respondent cannot rely on them or successful- ly claim that it had a good-faith doubt that the Union continued to maintain a majority status. In conclusion I find that Respondent violated Section 8(a)(5) and (1) of the Act on and after July 27, 1981, by withdrawing recognition from and refusing to bargain with the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent, as set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, common, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) and (1) of the Act by unlawfully withdrawing recogni- tion from the Union and by refusing to bargain with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, I recommend that Re- spondent be ordered to recognize and, on request, to bar- gain in good faith with the Union as the exclusive repre- sentative of its employees in that unit.16 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following bargaining unit of Respondent's em- ployees constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All technical employees classified as medical labora- tory technicians, respiratory therapy technicians, ECG technicians, pharmacy assistants, radiology technologists, darkroom technicians, radiology re- ceptionists, and operating room technicians , exclud- ing all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act and all other employees. 1e In its brief the Union requests that Respondent be ordered to pay the Union monetary damages in the amount of the dues wrongfully can- celed by Respondent and the costs incurred by the Union in litigating a frivolous defense That request is denied I believe that Respondent's de- fenses were debatable rather than frivolous Farrens Tree Surgeons, 264 NLRB 668 ( 1982); Heck's. Inc, 215 NLRB 765 (1974) Concerning the dues, an employer does not violate the Act by refusing to make dues pay- ment to a union after the expiration of a contract Peerless Roofing Co, 247 NLRB 500, 505 (1980), enfg. 641 F 2d 734 (9th Cir 1981), and cases cited therein 4. At all times material, the Union has been the exclu- sive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition from the Union and by refusing to bargain with the Union, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By promising benefits if employees rejected the Union, by interrogating employees concerning union sympathies, and by instigating, assisting, and encouraging the circulation of a decertification petition , Respondent violated Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' 7 ORDER The Respondent, Central Washington Health Services Association d/b/a Central Washington Hospital, Wenat- chee, Washington, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with Northwest Economic Council, Local 900, United Food and Commercial Workers International Union, AFL-CIO-CLC as the exclusive representative of its employees in the following bargaining unit: All technical employees classified as medical lab- oratory technicians, respiratory therapy technicians, ECG technicians, Pharmacy assistants, radiology technologists, darkroom techinicans, radiology re- ceptionists, and operating room technicians, exclud- ing all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act and all other employees. (b) Promising benefits if employees reject the Union, interrogating employees concerning union sympathies, or instigating, assisting, or encouraging the circulation of a decertification petition. (c) 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 in good faith with the Union as the exclusive representative of its em- ployees in the unit described above and, if an under- standing is reached, embody the understanding in a signed agreement. 17 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses CENTRAL WASHINGTON HOSPITAL 67 (b) Post at its Wenatchee, Washington facility, copies of the attached notice marked "Appendix." 18 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 18 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain in good faith with Northwest Economic Council, Local 900, United Food and Commercial Workers International Union, AFL-CIO-CLC as the exclusive representative of our employees in the following bargaining unit: All technical employees classified as medical labora- tory techinicans, respiratory therapy technicicns, ECG technicians, pharmacy assistants, radiology technologists, darkroom technicians, radiology re- ceptionists, and operating room technicians, exclud- ing all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act and all other employees. WE WILL NOT promise benefits if you reject the Union, or interrogate you concerning union sympathies or instigate, assist, or encourage the circulation of a de- certification petition. 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 recognize and, on request, bargain in good faith with the Union as the exclusive representative of our employees in that unit and, if an understanding is reached, embody the understanding in a signed agree- ment. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. CENTRAL WASHINGTON HEALTH SERVICES ASSOCIATION D/B/A CENTRAL WASHING- TON HOSPITAL