Alexander Linn Hospital Association

ALEXANDER LINN HOSPITAL ASSN. 103 Wallkill Valley General Hospital a/k/a Alexander Linn Hospital Association and Hospital, Profes- sional and Allied Employees of New Jersey. Cases 22-CA-9110 and 22-CA-9329 March 23, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On December 31, 1980, Administrative Law Judge Edwin H. Bennett issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering brief. 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 only to the extent consistent with this Decision and Order. Background The facts, more fully set forth in the judge's de- cision, may be briefly summarized as follows. Hospital, Professional and Allied Employees of New Jersey (the Union) was certified in July 1977 as the collective-bargaining representative of two units at the Alexander Linn Hospital in Sussex, New Jersey (the Sussex facility). 1 Following an economic strike in February and March 1978, the parties reached accord on collective-bargaining agreements for each of the two units to be effective from January 1 to December 31, 1978. In March and April 1978, the Respondent took certain ac- tions which resulted in a finding in Case 22-CA- 8226, et al., that it had violated Section 8(a)(1) and (5) of the Act by, inter alia, unilaterally and perma- nently subcontracting certain work without having bargained with the Union concerning the decision and its effect. Alexander Linn Hospital Assn., 244 NLRB 387 (1979), enfd. 624 F.2d 1090 (3d Cir. 1980). As noted, the parties' collective-bargaining agreement was effective through December 31, 1978. On September 29, 1978, the Union sent a letter, signed by Union Executive Chairperson Mario Boyko and Union President Ann Twomey, ' One of the two Sussex facility bargaining units was composed of reg- istered nurses, graduate nurses, and nurse anesthetists (RN unit). There were approximately 60 employees in the RN unit at that time. The other unit was composed of licensed practical nurses, graduate practical nurses, laboratory technicians, X-ray technicians, and EKG/EEG technicians (the technical unit). At that time, the Respondent did not operate the later acquired hospital at Franklin, New Jersey. to the Respondent's administrator, Raffaele Mar- zella, stating that the Union intended to bargain for modifications of the agreement and requesting that negotiating meetings be arranged. On that same day, employee Lorraine Simons filed with the Newark Regional Office a petition for decertifica- tion of the Union as the bargaining representative of the RN unit. 2 On September 30, 1978, Simons saw Marzella in the Respondent's cafeteria and told him that she had filed the RD petition and that "we felt that there was a majority who did not want the Union." The Region mailed the Respondent a formal no- tification of the petition on October 2, 1978. On October 16, 1978, the Respondent's attorney wrote the Regional Office, stating he had heard that the Region was not going to process the decertification petition due to the unfair labor practice case pend- ing in Case 22-CA-8226, et al. In the letter, the Respondent's attorney stated that the decertifica- tion petitions "combined with other factors at the hospital" led the Respondent "to question the ma- jority representation by the union." The Respond- ent contended that the pending unfair labor prac- tice case had no bearing on the decertification peti- tion and requested the Regional Office to process the decertification petitions. By letter of October 25, 1978, the Regional Di- rector informed the Respondent that as the May 1978 unfair labor practice case would have a sub- stantial impact on the decertification election if one were held, the decertification petition would be held in abeyance by him until disposition of the unfair labor practice case. The Board on Novem- ber 16, 1978, denied the Respondent's appeal of the Regional Director's action. Meanwhile, the Re- spondent on November 10, 1978, sent a letter to the Regional Office requesting, inter alia, that the Regional Office advise the hospital whether the de- certification petition was signed by a majority of the unit's members. The Regional Director denied that request. In November and December 1978, the Respond- ent conducted a survey among all of its employees requesting that they rank by preference three hy- pothetical fringe benefit packages. In mid-Decem- ber, after learning that the outside firm that pre- pares the Respondent's payrolls had failed to deduct union dues from some employees' pay- checks, the Respondent withheld certain amounts from future paychecks until the amounts that should have been deducted were recouped. 2 A second decertification petition, relating to the technical unit, was also filed. 288 NLRB No. 18 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD No negotiating sessions concerning a renewal contract were held in 1978. During 1978 the Re- spondent stated in letters dated October 5 and 13 to the Union that the decertification petition and other factors meant the Respondent questioned whether the Union continued to represent a majori- ty of the unit's employees. Two days after the con- tract expired on December 31, 1978, the Respond- ent stated in a letter to the Union concerning griev- ances that arose during the contract term that it re- served the right to question the Union's majority status, based on the decertification petition and "other objective considerations." On May 3, 1979, the Respondent merged its ex- isting facility at Sussex with the Franklin Hospital of Franklin, New Jersey (the Franklin facility), and changed its name from Alexander Linn Hospital to Wallkill Valley General Hospita1. 3 Following the merger of the Sussex facility and the Franklin facil- ity, the approximately 15 registered nurses who had been working at the Franklin facility were transferred to the Sussex facility, joining the ap- proximately 60 registered nurses at that location.1 The Franklin facility had not been unionized; sev; eral of the registered nurses there belonged to 4 social organization called the Franklin Nurses! Club. The Franklin Nurses' Club had 10 to 22 members and included registered nurses, licensed practical nurses, aides, and supervisors as members. On May 21 Union President Twomey wrote Rose- mary Fatzinger, president of the Franklin Nurses' Club, advising her that the Union represented the nurses at the Sussex facility and requesting that the opinions and concerns of the Franklin employees be communicated to Twomey. The following day, Fatzinger wrote Twomey: "We are in total agree- ment that joining a union at this time is out of the question. However, if we should have a change of opinion we shall contact you for further informa- tion." On May 18, 1979, Twomey again wrote Mar- zella, requesting commencement of negotiations for a new contract. Responding by letter of May 24, Marzella wrote that the Respondent would not agree to negotiate with the Union "because the Hospital has a serious and good faith doubt that the [Union] continues to represent a majority of the Hospital employees." Marzella then detailed the Respondent's reasoning: 1. H.P.A.E. engaged in a strike at Alexander Linn Hospital in early 1978, and out of ap- 3 In April 1979 the Respondent had conducted meetings with employ- ees to discuss the upcoming merger. 4 The judge found that the merger of the two facilities resulted in the nurses at the Franklin facility bemg accreted to the already existing RN unit at the Sussex facility. No exceptions were filed to this finding proximately 90 employees in the Bargaining Units, only 28 did not work during the strike. The balance of the employees continued to work. 2. Several of the 28 employees who did not work during the 1978 strike were replaced. 3. There has been a turnover of employees in the Bargaining Units. 4. We received a Petition filed with the Na- tional Labor Relations Board by the employ- ees of the Hospital and are informed that a majority of our employees have requested the National Labor Relations Board to hold an election to determine whether or not the H.P.A.E, continues to represent the employ- ees. 5. There currently are 14 employees author- izing dues deduction from their salaries and re- mittance to the union out of approximately 150 employees in the combined Wallkill Valley General Hospital Units. 6. We understand that the employees at the Ambulatory Care Center of the Wallkill Valley General Hospital, after receiving an in- vitation from the H.P.A.E., have expressed almost unanimous rejection of the H.P.A.E. 7. The merger of Alexander Linn Hospital and Franklin Hospital into the Wallkill Valley General Hospital has created a new an. expanded Bargaining Unit to the extent that the number of employees authorizing dues de- duction (14) out of a total of about 150 em- ployees is less than 10% interest in the union. The letter concluded with the following: "We be- lieve that, in view of the foregoing, it would be im- proper to recognize and bargain with the [Union]." Also on May 24, 1979, the Regional Director dismissed the decertification petition. He relied on Judge Wilks' opinion in Case 22-CA-8226, et al., which issued March 26, 1979, finding that the Re- spondent had committed unfair labor practices and the issuance on May 24 of the complaint in this proceeding. The Respondent filed on June 4 a re- quest for review, amended August 6, maintaining that it had objective reasons for doubting the Union's majority status and requesting the Board to conduct an election among the employees. The Re- spondent filed an RM petition on July 13. The Board issued its decision affirming Judge Wilks' de- cision on August 20 (244 NLRB 387)? On Septem- ber 10 the Board reversed the Regional Director's dismissal of the decertification petition, stating that its Order in its decision affirming Judge Wilks' de- cision and the alleged refusal-to-bargain violation in Case 22-CA-9110 "are of a type which does not ALEXANDER LINN HOSPITAL ASSN. 105 preclude the existence of a question concerning representation. See Big Three Industries, 201 NLRB 197 [(1973)]." The Regional Director on September 26, 1979, reinstated the decertification petition, but decided to hold the petition in abeyance pending compliance with the Board's Decision and Order affirming Judge Wilks' decision and disposition of the complaint in the instant case. The Board denied the Respondent's request for review of that action by the Regional Director. The Union by letter dated September 24, 1979, again requested the Re- spondent to negotiate a new collective-bargaining agreement, and the Respondent by letter dated Oc- tober 11 replied that it "continues to refuse to rec- ognize and bargain with [the Union] for reasons set forth in [the] letter. . . dated May 24, 1979." In June 1979 the Respondent unilaterally changed the terms and conditions of employment of its registered nurses. In so doing, the Respond- ent equalized the benefits of the Sussex and Frank- lin registered nurses. The complaint alleges that the Respondent vio- lated Section 8(a)(5) and (I) in numerous respects. The judge, however, recommended dismissing the complaint in its entirety. Based on the General Counsel's exceptions, the issues before us are whether the Respondent violat- ed the Act by (1) dealing directly with employees and unilaterally changing terms and conditions of employment prior to the expiration of the parties' contract5 and (2) at and after the time of the merger, withdrawing recognition of, and refusing to bargain with, the Union regarding the RN unit, unilaterally changing terms and conditions of em- ployment, and directly dealing with employees.6 We agree with the judge, essentially for the rea- sons set forth by the judge, that the complaint alle- gations involving the Respondent's conduct prior to the expiration of the contract, except for the al- legations regarding the benefit survey, must be dis- missed. We also agree that the evidence fails to es- tablish that the Respondent in April 1979 directly dealt with employees regarding the merger of its two facilities. However, for reasons set forth 5 More specifically, it was alleged that the Respondent unilaterally re- duced the employees' wages to correct a payroll error involving union dues checkoff; bargained directly and individually with employees re- garding the manner in which the payroll error would be corrected; mis- represented in a letter to employees the Union's position regarding the payroll error correction; and conducted a survey of employees' prefer- ences for various benefits not then provided to the employees. 6 More specifically, it was alleged that during April 1979 the Respond- ent bargained directly with employees regarding changes that could occur in their wages, hours: and other terms and conditions of employ- ment; about May 24, 1979, the Respondent refused to recognize the Union; and about June 25, 1979, the Respondent unilaterally changed ex- isting wage rates, hours of employment, on-call coverage, shift differen- tials, life insurance benefits, and other terms and conditions of employ- ment. below, we find, contrary to the judge, that the Re- spondent unlawfully bypassed the Union and dealt directly with employees by conducting a benefit survey, unlawfully withdrew recognition from the Union, and unlawfully made unilateral changes in employees' terms and conditions of employment. Decertification Petitions As a matter preliminary 'to our discussion of the complaint's allegations, we note the following. None of the Board Members participating in this ease participated in the decision directing the Re- gional Director to reinstate the dismissed certifica- tion petitions. Whatever may have been intended by the Board's Order, issued on August 28, 1979, directing that the decertification petitions be reinstated, we hold, for the reasons stated below, that the peti- tions were tainted by the unfair labor practices found against the Respondent in the decision ulti- mately issued as 244 NLRB 387. We are therefore now directing that those petitions be dismissed.? However, because the complaint in this case did not allege that the Respondent's act of suspending negotiations for a successor agreement violated Section 8(a)(5) of the Act and thus did not contest the proposition that the Respondent was privi- leged, under the then applicable doctrine of Telau- tograph Corp., 199 NLRB 892 (1972), to suspend such negotiations on the basis of the petitions, we assess the Respondent's recognitional obligations for the period at issue in this case under the rules of Telautograph, notwithstanding our conclusion that there were no valid decertification petitions pending at the time the Respondent suspended ne- gotiations.5 In Hearst Corp., 281 NLRB 764 (1986)1 the Board restated its position that a decertification pe- tition will be valid only if, prior to an employer's reliance on the petition, it has not engaged in con- duct "designed to undermine employee support for, or cause their disaffection with, the union." If an employer has engaged in such conduct, the decerti- fication petition will be found to have been tainted by the unfair labor practices. In Case 22-CA-8226 et al., the Board held that the Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting certain unit work with- out notice to or bargaining with the Union and vio- 7 The General Counsel, by requesting that we find certain violations and impose a general bargaining order, has implicitly put this issue before us. (See the remedy section, infra.) In cases subsequent to Telautograph Corp., supra, the Board made it clear that only an untainted decertification petition could privilege an employer to suspend negotiations. See, e.g., Autoprod. Inc., 223 NLRB 773 fn. 2, 779 (1976); Forester Beverage Corp., 265 NLRB 285 fn. 3 (1982). 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lated Section 8(a)(1) by terminating an employee because of her protected concerted activities. These unfair labor practices occurred in March and April 1978, respectively, and they were unreme- died as of the date of the filing of the decertifica- tion petition (i.e., September 29, 1978). Applying the test set forth in Hearst, we find that the unfair labor practices in Case 22-CA-8226 et al., were of a nature that would urfdermine employee support for and cause disaffection with the Union. Accord- ingly, inasmuch as the decertification petitions were tainted, we shall direct that they be dis- missed.9 Benefit Survey We find that the Respondent violated Section 8(a)(5) and (1) by conducting a benefit survey among employees. The Board stated in Obie Pacif: ic, Inc., 196 NLRB 458, 458-459 (1972), as follows: [T]he question is whether an employer may at- tempt to erode a union's bargaining position by engaging in a direct effort to determine em- ployee sentiment rather than to leave such ef- forts to the agent of the employees. Respondent's obligation to bargain with the employees' exclusive agent demands that he accept and respect the exclusivity of that agency. While, under appropriate circum- stances, an employer may communicate to em- ployees the reasons for his actions and even for his bargaining objective, he may not seek to determine for himself the degree of support, or lack thereof, which exists for the stated po- sition of the employees' bargaining agent. If we were to sanction such efforts, we would impede effective bargaining. Hew, the Respondent, in November and Decem- ber 1978, surveyed its employees regarding their preferences as to medical insurance, dental insur- ance, or pension benefits. Those benefits were not provided in the existing contract. However, the Union had sought such benefits in the negotiations completed earlier that year, and the Union had re- cently requested negotiations for a new contract. The Respondent took the survey shortly after de- clining to bargain for a successor agreement.1° 9 As noted in our discussion of the refusal-to-bargain allegation, the General Counsel concedes that the merger of the Respondent's facilities destroyed the technical unit Thus, the only decertification petition in issue is that involving the RN unit. 10 Though we have found that the Respondent lawfully suspended bargaining at the end of September 1978 for a successor contract, the Union at that time remained the employees' representative and the possi- bility clearly existed for bargaining to resume Subsequent to the suspen- sion of barganung, the Union continued to assert that it represented the unit employees, and it repeatedly requested negotiations for a successor agreement Thus, although Obie Pacific did not involve a situation in which bargaining had been lawfully suspended, its teachings are applica- Given the timing"- and the nature of the Respond- ent's survey, it cannot be deemed a mere general survey—unrelated to collective bargaining—of em- ployee views. 12 Rather, the Respondent's actions in ascertaining employee sentiment constituted a bypassing of the Union. In the circumstances here, the Respondent sought to ascertain employee opin- ion prior to the bargaining' 3—a job that belonged to the Union. See Shenango Steel Buildings, 231 NLRB 586, 589 (1977). Thus, we find that the Re- spondent's conducting a benefit survey violated Section 8(a)(5) and (1) of the Act. Refusal to Bargain In considering the lawfulness of the Respond- ent's conduct in May and June 1979, we begin by finding, in agreement with the judge, that since May 24, 1979, the Respondent has refused to bar- gain with the Union. We also find, contrary to the judge, that since May 24, 1979, the Respondent has withdrawn recognition of the Union. 14 The issue ble to this case. Further, the Respondent's surveying of employees would not be consistent with its Telautograph obligation of strict neutrality pending resolution of the decertification petition. " There was no showing by the Respondent that It had a compelling need to conduct the survey in November and December 1978. Indeed, the testimony of the Respondent's comptroller Kirby suggests quite the contrary When testifying with regard to why the survey was taken, Kirby testified, "[w]e also had felt over the years that we did not have a proper benefits package, and we were trying to determine what in fact our employees valued the most [emphasis added] " 12 Cf. United Technologies, 274 NLRB 1069 (1985) (an employer survey conducted merely to determine whether the employer's personnel poli- cies and benefit programs were being properly communicated to its most recently hired employees was lawful). 13 We reject as totally unpersuasive the Respondent's contention that it surveyed employee sentiment to enable it to explore the cost of various benefits The view of the employees is not a necessary element for pm- mg certain benefit plans. In any event, as we find that the Respondent's effort was related to bargaining, it is immaterial whether the Respondent would have found the information helpful for exploring the cost of bene- fit plans 14 We make that finding on several bases First the Respondent in its May 24, 1979 letter to the Union stated that due to its doubt of the Union's continuing majority status "it would be improper to recognize" the Union Second, the Respondent admitted in its answer to the first amended complaint the allegation of par. 24, which read: 24 Since on or about May 24, 1979, and at all times material herein to date, Respondent did refuse and continues to refuse to recognize and bargain collectively with the Union as the exclusive collective bargaining representative of its employees in the unit described above in paragraph 19. At the unfair labor practice heanng, the Respondent again admitted, in its oral answer to the General Counsel's motion to amend complaint, the substance of par 24 (which appeared as par. 22 in the amended complaint as amended at hearing) The Respondent's answer to this allegation of the complaint, as twice amended, essentially demes only that the Union con- tinued to represent a majority of the unit's employees Thus, as in Bur- lington Homes, 246 NLRB 1029, 1031 (1979), "by its failure to deny spe- cifically that portion of the complaint alleging that Respondent failed and refused to recognize and bargain with the Union, Respondent is deemed to have admitted its refusal to recognize and bargain" Third, "there is no basis for construing Respondent's [May 24 letter] as anything other than a withdrawal of recognition in the circumstances of this case, since Re- spondent failed to meet or bargain with the Union" through the unfair labor practice hearing date Id. at 1030-1031 Therefore, we find that the Respondent withdrew recognition of the Union as of May 24, 1979 ALEXANDER LINN HOSPITAL ASSN. 107 to be resolved is whether that refusal to bargain and/or withdrawal of recognition violated Section 8(a)(5) of the Act.15 In Dresser Industries, 264 NLRB 1088 (1982), the Board held that the mere filing of a decertification petition would neither require nor permit an em- ployer to withdraw from bargaining or to refuse to execute a contract with an incumbent union. How- ever, the Board held that the rule in Dresser would be applied prospectively only. Thus, in cases, like this one, arising prior to Dresser, the holding on Telautograph Corp., 199 NLRB 892 (1972), applies. Under Telautograph, an employer, faced with a de- certification petition raising a real question con- cerning representation, was required to suspend bargaining for a successor contract. Thus, applying Telautograph, the Respondent here could, in light of the filing of a decertification petition, lawfully suspend bargaining for a successor contract—pend- ing resolution of the question concerning represen- tation. Though the Respondent was privileged to sus- pend bargaining, it does not follow that it was privileged to take the further steps of withdrawing recognition or making unilateral changes." See, e.g., Flex Plastics, 262 NLRB 651 (1982). 15 We find no merit to the Respondent's argument that Sec. 10(b) of the Act bars our consideration of the alleged violations occurring in May and June 1979. The charge in Case 22-CA-9329, filed on June 28, 1979, alleges that the Respondent unlawfully withdrew recognition and unlaw- fully Imposed unilateral changes in terms and conditions of employment. We find herein that the Respondent unlawfully withdrew recognition of the Union in May 1979, and unlawfully imposed unilateral changes in June 1979 Though the Respondent had in October 1978 raised questions regarding the Union's majonty status, It was not until its letter of May 24, 1979, that it gave clear notice of its intent to refuse to recognize and bargain with the Union It thus is clear that the withdrawal of recogni- tion and unilateral changes occurred well within the 10(b) penod. 16 The judge suggested that the law was unsettled regarding whether an employer, under Telautograph, would be permitted on the filing of a valid decertification petition, in addition to suspending bargaining for a successor agreement, to withdraw recognition of the union and make uni- lateral changes. See, Inter alia, fn 16 of the judge's decision. As the judge noted, certain cases could be read to hold that a valid decertification peti- tion, by itself and without a showing of majority support for the petition, could create a reasonably based good-faith doubt about continued majori- ty support for the union in question and thereby justify withdrawing rec- ognition or making unilateral changes. See, e.g., Vernon Mfg. Co, 214 NLRB 285 (1974), reaffd. 219 NLRB 622 (1975); Ellex Transportation, 217 NLRB 750 (1975). However, other cases decided after Telautograph held, as the judge ultimately concluded here, that additional factors (i.e., in addition to a valid decertification petition) were needed to justify a reasonably based good-faith doubt. The Respondent has not excepted to that legal conclusion In Turbodyne Corp., 226 NLRB 522, 525 (1976), in which the Board adopted a judge's reasoning that, on a question concern- ing representation being raised by a valid petition, "[Ole legal obligation of an employer, irrespective of doubt of majority status, is to await reso- lution of the QCR . . . before instituting any changes in the working conditions of the employees." In our view, the comments by the Board Members participating in Lammert Industries, 229 NLRB 895 (1977), noted by the judge, did not call into question this basic holding of Turbo- dyne. Subsequent cases also followed the holding in Turbodyne. See, e g., Baughman Co., 248 NLRB 1346 (1980); Walker Die Casting v. NLRB, 682 F.2d 592 (6th Cir. 1982), enfg. 255 NLRB 212 (1981), Taurus Waste Dis- posal, 263 NLRB 309, 313 (1982); Sanderson Farms, 271 NLRB 1477 With regard to a withdrawal of recognition,17 the Board, in Burger Pits, Inc., 273 NLRB 1001 (1984), set forth the following statement of long- standing legal principles: It is well settled that absent unusual circum- stances a union enjoys an irrebuttable pre- sumption of majority status during the first year following its certification. After the certi- fication year the presumption of majority status becomes rebuttable. Whether certified or voluntarily recognized, a union also enjoys a rebuttable presumption of majority status upon the expiration of a collective-bargaining agree- ment. An employer who refuses to bargain with an incumbent union may rebut the pre- sumption of majority status by establishing either (1) that at the time of the refusal to bar- gain the union in fact did not enjoy majority status, or (2) that the refusal was predicated on a good-faith and reasonably grounded doubt, supported by objective considerations, of the union's majority status. [Footnotes omitted.] As stated above, absent a showing that a majori- ty of employees supported it, the decertification pe- tition, by itself, could not justify the Respondent's withdrawal of recognition' s nor its subsequent uni- lateral changes. Thus, under the principles set forth above, we must decide whether the Respondent had a good-faith doubt based on objective consid- erations of the Union's majority status.19 In its May 24 letter to the Union, the Respond- ent, as previously noted, set forth seven factors to justify its refusal to recognize and bargain with the Union. Our evaluation of those factors—concern- ing whether they singly or collectively constitute objective considerations—follows:20 1. H.P.A.E. engaged in a strike at Alexander Linn Hospital in early 1978, and out of ap- proximately 90 'employees in the Bargaining Units, only 28 did not work during the strike. The balance of the employees continued to work. The Board has long held that employees' non- participation in a strike does not demonstrate that (1984), and discussion thereof, Infra. Thus, cases like Vernon and Ellex were by implication overruled by subsequent holdings of the Board. " The General Counsel conceded that the Respondent's merger of its two facilities destroyed the technical unit and ended the Respondent's ob- ligation to bargain concerning that unit. Accordingly, our discussion of the allegations of a withdrawal of recognition and unilateral changes ap- plies only to the RN unit. 18 See also KEZI-TV, 286 NLRB 1396 (1987). " There is no evidence, nor any contention, that the Union had in fact lost its majority status. 20 We shall consider these factors in an order different from that set forth by the Respondent We do so in order to consider together those factors that rely, in part, on employee statements and representations. 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they have rejected their union as their collective- bargaining representative. 21 The Board has recog- nized that returning strikers may cross their union's picket line for reasons other than repudiation of the union. Financial reasons or an unwillingness to sup- port a particular strike may motivate an employee to return to work. Accordingly, the failure of cer- tain employees to support the strike does not con- stitute objective considerations. Moreover, the strike ended, and the parties en- tered a collective-bargaining agreement, over a year before the Respondent's withdrawal of recog- nition. Thus, assuming arguendo that some employ- ee dissatisfaction may be gleaned from the employ- ees' failure to support the strike, that dissatisfaction was expressed prior to the parties entering a con- tract that created an irrebuttable presumption that employees supported the Union. 22 Accordingly, such a "stale" indication of employee sentiment could not be relied on to withdraw recognition of the Union in May 1979.23 2. Several of the 28 employees who did not work during the 1978 strike were replaced. In Station ICKHI, 284 NLRB 1339 (1987), the Board concluded that no presumptions should be applied to determine the view of strike replace- ments. The Board stated (at 1344-1345): [W]e can discern no overriding generalization about the views held by strike replacements and therefore we decline to maintain or create any presumptions regarding their union senti- ments. Rather, we will review the facts of each case, but will require "some further evi- dence of union non-support" [footnote omit- ted] before concluding that an employer's claim of good-faith doubt of the union's major- ity is sufficient to rebut the overall presump- tion of continuing majority status. Here, for the reasons set forth below, the matter of strike replacements does not support the Re- spondent's position. On the record before us, we do not know how many strike replacements there were, nor do we know if the strike replacements filled jobs in the nurses unit or in the technical 24 See, e g., Mobile Homes Estates, 259 NLRB 1384, 1404 (1982), enfd in pertinent part 707 F.2d 264 (6th Cir 1983), Seeburg Corp., 192 NLRB 290, 304-305 (1971). 22 See generally BASF-Wyandotte Carp, 276 NLRB 498, 504 (1985). 22 In NLRB v Pennco, Inc , 684 F.2d 340 (6th Cir 1982), the court discussed whether any presumption concerning union sentiment should exist about employees crossing a picket line on which violence occurred. Noting that the picket line violence ended approximately 3-1/2 months before the withdrawal of recognition by the employer, the court conclud- ed "it was impossible to attribute to those who crossed the picket line an anti-union animus" on the date when recognition was withdrawn. unit.24 Assuming there were strike replacements in the RN unit, no presumption applies and, without more evidence as to the replacements' sentiments, the Respondent's position is not bolstered. Also, as with the previously noted issue of strike support, the evidence regarding strike replacements is "stale." Whatever the number of replacements, those replacements would have assumed their posi- tions over a year before the withdrawal of recogni- tion and prior to the contract being signed. Thus, this factor lends no support here for a finding of objective considerations. 3. There has been a turnover of employees in the Bargaining Units. The Respondent's reliance on employee turnover is misplaced. The Board presumes that new em- ployees support the union. See Laystrom Mfg. Co., 151 NLRB 1482 (1965), enf. denied 359 F.2d 799 (7th Cir. 1966). Moreover, we note that, except for the bare assertion in the Respondent's May 24 letter, we have before us no evidence of actual em- ployee turnover." Thus, this factor offers no sup- port here to the Respondent's position. 4. There currently are 14 employees author- izing dues deduction from their salaries and re- mittance to the union out of approximately 150 employees in the combined Wallkill Valley General Hospital Units. The merger of Alexander Linn Hospital and Franklin Hospital into the Wallkill Valley General Hospital has created a new and more expanded Bargaining Unit to the extent that the number of employees authorizing dues de- duction (14) out of a total of about 150 em- ployees is less than 10% interest in the union. These "two" factors relied on by the Respondent relate to one matter—the limited number of em- ployees authorizing dues deduction. The Board has held that majority support for a union is not to be confused with majority union membership. See At- lanta Hilton & Towers, 278 NLRB 474 (1986), and cases cited there. Accordingly, the limited number of employees authorizing dues deduction is not reli- able evidence of employee dissatisfaction and af- 24 At trial, and through the testimony of Hospital Administrator Mar- zella, the Respondent made an offer of proof with regard to strike re- placements. The judge rejected the Respondent's offer of proof, and the Respondent did not except to the judge's ruling. Accordmgly, Marzella's testimony in this regard is not before us 25 The Respondent offered and the judge admitted a document con- taining the names of bargaining unit employees as of September 23, 1978. The Respondent also proffered, but the judge rejected as irrelevant, a roster of those employees in the units as of March 24, 1979 Presumably, the Respondent sought to demonstrate the amount of employee turnover between September 1978 and March 1979. However, the Respondent failed to except to the judge's rejection of the March 1979 employee , roster and thus we cannot review or rely on that document. ALEXANDER LINN HOSPITAL ASSN. 109 fords no support to the Respondent's position that it relied on objective considerations. 5. We received a Petition filed with the Na- tional Labor Relations Board by the employ- ees of the Hospital and are informed that a majority of our employees have requested the National Labor Relations Board to hold an election to determine whether or not the H.P.A.E. continues to represent the employ- ees. We understand that the employees at the Ambulatory Care Center of the Wallkill Valley General Hospital, after receiving an in- vitation from the H.P.A.E., have expressed almost unanimous rejection of the H.P.A.E. As previously noted, we are assuming arguendo that the petition, under the holding of Telautograph Corp., 199 NLRB 892 (1972), which applies here, privileged the Respondent's refusal to bargain for a successor contract. However, as also previously noted, absent a definite showing that a majority of employees signed in support of the petition, 26 the petition, without more, would not justify a with- drawal of recognition or the making of unilateral changes. However, the Respondent contended, and the judge found, that certain representations made by employees, when coupled with the decertification petition, established a reasonably based doubt of union majority status. We cannot agree. In circumstances in which employee statements may be deemed definite and reliable, those state- ments may be evidence supporting a finding of ob- jective considerations. 2 7 26 See Sanderson Farms, 271 NLRB 1477 (1984). Sanderson, like this case, was decided under the teachings of Telautograph. The Board in San- derson held that a decertification petition will establish a reasonably based good-faith doubt of union majority status only if It is shown that a major- ity of employees signed in support of the petition. Cf. Automated Business Systems, 205 NLRB 532 (1973) There, while finding an employer obliga- tion to bargain based on other grounds, the Board suggested that a decer- tification petition, accompanied by definitive representations from the pe- titioner's attorney and an employee, that a majority of employees signed the petition would establish a reasonably based good-faith doubt 27 In U-Save Food Warehouse, 271 NLRB 710, 717 (1984), the Board adopted a judge's finding that an employer, with "fair certainty," could conclude that certain employees had rejected the union. A supervisor, "based on direct conversations with employees which Included clear re- jections of representation," reported employee dissatisfaction. The super- visor thus had "clear knowledge," not "mere subjective conjecture." Fur- ther, there was no suggestion that the employer had unlawfully solicited and coerced employees to make their statements. Thus, objective consid- erations were established. Similarly, in Seco, Inc., 268 NLRB 159 (1983), the Board found that employee statements contributed to a reasonably based good-faith doubt. In Sojco, certain employees expressed to a plant manager their rejection of the union. In his testimony, the plant manager supported his assertions "with testimony concerning specific conversations with a number of Indi- viduals." The Board explicitly noted that this testimony differed from "self-serving general assertions" by an employer. Thus, the plant manager was not engaging in conjecture. Also, there was no suggestion that the employer unlawfully obtained the employee statements. Indeed, the Board noted that "the conversations were initiated in the plant by the However, as the Board recently stated in Louisi- ana-Pacific Corp., 283 NLRB 1079 (1987), the Board must view with suspicion and caution em- ployee statements purporting to represent the views of other employees. Otherwise, as stated originally in Golden State Habilitation Convalescent Center, 224 NLRB 1618 (1976), "a few antiunion employees could provide the basis for a withdraw- al of recognition when in fact there is actually an insufficient basis for doubting the Union's contin- ued majority." (224 NLRB at 1619-1620.) In Redok Enterprises, 277 NLRB 1010 (1985), the Board found that an employee's representation that she had spoken to other employees and that a ma- jority did not want the union did not establish ob- jective considerations. It was noted that the em- ployee did not name those other employees alleg- edly rejecting the union. Citing Cornell of Califor- nia, 222 NLRB 303 (1976), enfd. 577 F.2d 513 (9th Cir. 1978), the Board deemed an employee's unver- ified assertions as insufficient to establish a reason- ably based good-faith doubt. See also Bryan Memo- rial Hospital, 279 NLRB 222 (1986), enfd. 814 F.2d 1259 (8th Cir. 1987); Wilder Construction, 276 NLRB 977 (1985). The Respondent contended, and the judge found, with regard to the decertification petition, that Lorraine Simons (the decertification petitioner) "told Marzella that a majority of the employees did not want the Union."28 We cannot agree with the Respondent's and the judge's characterization of what Simons told the Respondent. It is important, in evaluating Simons' statement, to review exactly what Simons told the Respondent. At the hearing, Simons testified, and the judge credited, that she told Marzella that "we felt that there was a majority who did not want the Union." Simons did not state that a majority of the employees had signed the petition, nor did she state how many employees signed the petition, but only that she and, apparently, other prodecertification employees "felt" that a majority of employees did not want the Union.29 Simons' bare assertion was subjective, lacking in demonstrable foundation and cannot be found to provide objective considerations. The Simons' statement is strikingly similar to that of employee Upton in Atlanta Hilton & Towers, 278 NLRB 474 employees Involved with no hint of a coercive atmosphere." (268 NLRB at 160 fn. 10.) 28 At another point in his decision, the judge stated that the Respond- ent was told "precisely" by Simons that the "decertification movement had majonty support." 29 Indeed, in its May 24, 1979 letter, the Respondent did not construe Simons' statement as having Informed it that a majority of employees had signed the petition. Rather, the Respondent claimed It had been told that a majority of employees wanted "an election." 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1986). Both statements set forth the "feeling" of the employees. 30 As stated in Atlanta Hilton, that sort of statement is "nothing more than conjecture and opinion." 31 Accordingly, Simons' statement lends no support for finding objective consider- ations. According to employee Fatzinger, the Union's letter to the Franklin Nurses' Club was received by Mrs. Latham, the director of nurses and a stipulat- ed supervisor. Further, according to Fatzinger, she and Latham read and discussed the letter. Thereaf- ter, other employees came into the lounge and en- tered the discussion. When asked whether she had occasion to meet with other RNs regarding the Union's letter, Fatzinger responded: 'Yes, and we had talked—I had talked to them before that" When asked how many RNs she met with, Fat- zinger responded: "I imagine there were at least seven, maybe more." 32 When asked to name other RNs with whom she spoke, Fatzinger offered only four names, one of whom (RN Stack) was a super- visor. Still further, Fatzinger testified, "[W]ell, to boil it down, the general opinion was, I don't feel that there's a place for a union in a hospital or health facility." Overall, we are not satisfied that Fatzinger's statement had a sufficient foundation to be deemed a reliable and definite indication of the sentiments of the RNs at the Franklin facility. Fatzinger was unable to recall specific statements by specific em- ployees. It is unclear whether the participation of Supervisors Latham and Stack in the discussions may have influenced employee statements." In her letter, Fatzinger stated that the Union had been dis- cussed with "most of the nurses." It is thus unclear on behalf of how many RNs Fatzinger purported to speak." Viewing Fatzinger's statement against her description of the basis for her statement, we must deem her statement, in her letter, as insuffi- ciently reliable and definite to contribute to a find- ing of objective considerations. Finally, the judge found that employee represen- tations to Hospital Administrator Marzella consti- tuted objective considerations. 30 See also KEZI-TV, 286 NLRB 1396 (1987) (statement of employee Yocum). Si Indeed, the implication of Simons' statement is that a majority had not signed the petition. Simons filed die petition and thus presumably knew how many signatures supported it. Had a majority signed, she could have easily stated that fact to Marzella or, at least, stated the number of signers. 32 As noted, there were approximately 15 RNs at the Franklin facility. s 33 Thus, it is uncertam whether employees volunteered their senti- tnents in a noncoercive atmosphere. When asked if Latham expressed her opinion about the Union during the discussions, Fatzinger replied. "Like I said, I don't recall that I think she did." 34 The Respondent's May 24 letter alludes to "almost unanimous rejec- tion" of the Union by the RNs at Franklin. According to Marzella, he held meetings in April 1979 with employees of the Alexander Linn facility and the Franklin facility to discuss the up- coming merger. With regard to discussing the Union at these meetings, Marzella testified: Q. Were there RNs present at these meet- ings? A. To the best of my recollection, yes, there was. Q. How many meetings did you hold? A. I think there were several. I think we had two that week, at different hours in order to try to cover the three shifts. Q. Do you recall at any time during the course of these series of meetings, the discus- sion of unionism coming up? A. Absolutely. Q. Can you tell us when, to the best of your recollection, and what transpired? A. At one or two of the meetings, I was asked direct questions from the nurses at the Franklin site, of which wanted to know where the Union was going. I attempted to tell them, to the best of my knowledge at that point in time, what it was. Which to this point, I don't recall. And they voluntarily stated they didn't want no part of 'any union, and chirping in were a few of the nurses from the Sussex site. Q. When you say chirping in, what do you mean? A. Stating that they, too, had no designs on continuing recognition through HPAE. This is the sum and substance of Marzella's testi- mony regarding the Respondent's objective consid- erations. He did not name names or give specific dates. He did not set forth one specific or definite statement made by any particular RN. Thus, Mar- zella's testimony is far too imprecise and uncertain to convey other than his general impression that the Franklin nurses—and perhaps a few others— did not want the Union. 35 Unlike the judge, we cannot rely on Marzella's testimony as supporting a reasonably based good-faith doubt." 35 See NLRB v. Middleboro Fire Apparatus, 590 F.2d 4 (1st Qr 1978), enfg. 234 NLRB 888 (1978) "In the present case, the Respondent's im- pressions of employee sentiment, inferred from that of a few employees, does not rebut the presumption of continued majority status" Likewise, in Seeburg Corp., 192 NLRB 290 (1971), the Board rejected as valueless unquantified,-nonspecific statements about employees' opposition to union representation. 36 In dismissing the allegation added at hearing as an amendment to the complaint (i.e., direct dealmg m the April meetmgs), the judge char- acterized Marzella's testimony about the April meetings as "vague, uncer- tain, and indefinite." We agree and further find that the characterization applies to Marzella's testimony regarding his receipt at the meetings of representations of employee sentiment regarding the Union When re- Continued ALEXANDER LINN HOSPITAL ASSN. 111 The above-noted factors cited by the Respond- ent, whether considered individually or collective- ly, do not constitute sufficient objective consider- ations to warrant a good-faith doubt. Except for the decertification petition, the factors relied on by the Respondent are unreliable and unpersuasive in- dicators of employee sentiment. As previously stated, a decertification petition alone cannot estab- lish a good-faith doubt. Thus, the Respondent has not met its burden of showing its actions were based on objective considerations. Therefore, the Respondent's withdrawal of recognition and subse- quent unilateral changes in employees terms and conditions of employment violated Section 8(a)(5) of the Act. 3 7 CONCLUSIONS OF LAW 1. The Respondent, Wallkill Valley General Hospital a/k/a Alexander Linn Hospital Associa- tion, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Hospital, Professional and Allied Employees of New Jersey, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time registered nurses, graduate nurses, and nurse anesthetists em- ployed at the Respondent's Sussex and Franklin fa- cilities, but excluding all other professional employ- ees, director of patient care service, in-service edu- cator, health care coordinator, watchmen, guards, all other employees, and all supervisors as defined in the Act constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times Hospital, Professional and Allied Employees of New Jersey has been the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act for all the Respondent's employees employed in the unit described above. 5. By bypassing the Union and dealing directly with employees by surveying employees represent- ed by the Union regarding their preference among benefits not currently provided, the Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. called to testify further about the meetings informing employees about the merger, Marzella testified, "But I do not recollect specifically what was discussed." 33 We previously found that the Respondent's conducting of a benefit survey in November and December 1978 violated Sec. 8(a)(5) of the Act Therefore, the Respondent's withdrawal of recognition and implementa- tion of unilateral changes occurred in an atmosphere of unremedied unfair labor practices. This factor lends further support to our finding that the Respondent's withdrawal of recognition was unlawful. See Guer- don Industries, 218 NLRB 658 (1975). 6. By withdrawing recognition from the Union and thereafter refusing to recognize and bargain with the Union regarding any changes in the terms and conditions of employment, the Respondent en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY We have found that the Respondent violated Section 8(a)(5) and (1) of the Act by bypassing the Union and dealing directly with employees and by withdrawing recognition from the Union when it was not justified in doing so, and by unilaterally changing terms and conditions of employment of unit employees without bargaining with the Union. To remedy these violations, we shall require the Respondent to cease and desist from its unlawful conduct and to take certain affirmative action de- signed to effectuate the policies of the Act." With regard to remedy, the General Counsel asks that the Respondent be ordered to bargain generally with the Union for a reasonable period of time. We agree with the General Counsel that a general bargaining order is an appropriate remedy in the circumstances of this case. The Respondent has been found, inter alia, to have unlawfully withdrawn recognition of the Union and to have made unilateral changes. The standard remedy for such misconduct is a general bargaining order. See, e.g., Hearst Corp., 281 NLRB 764 (1986); Antonino's Restaurant, 246 NLRB 833 (1979). In Sanderson Farms, 271 NLRB 1477 (1984), to remedy an unlawful withdrawal of recognition and unilateral changes, the Board imposed only a limit- ed bargaining order. In Sanderson Farms, however, the Board found that no unfair labor practices oc- curred prior to the filing of the decertification peti- tion. Thus, the Board found no basis for dismissing the decertification petition and ruled that it should be processed after compliance with the Board's Order. Here, unlike Sanderson Farms, we have found that the decertification petition was tainted and must be dismissed. Accordingly, there is no impediment to our imposing, as we normally would, an order directing the Respondent to bar- gain with the Union and, if an agreement is 38 Our Conclusions of Law, remedy, and Order are tailored to reflect that the General Counsel concedes that the merger of the Respondent's two facilities destroyed the technical unit and ended the Respondent's ob- ligation to bargain as to that unit. 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reached, embody that agreement in a signed con- tract. ORDER The National Labor Relations Board orders that the Respondent, Wallkill Valley General Hosptiat a/k/a Alexander Linn Hospital Association, Sussex and Franklin, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Hospi- tal, Professional and Allied Employees of New Jersey as the exclusive representative of the em- ployees in the following appropriate bargaining unit: All full-time and regular part-time registered nurses, graduate nurses and nurse anesthetists employed at Respondent's Sussex and Franklin facilities, but excluding all other professional employees, director of patient care service, in- service educator, health care coordinator, watchmen, guards, all other employees and all supervisors as defined in the Act. (b) Unilaterally changing the terms and condi- tions of employment of employees represented by the Union. (c) Bypassing the Union and dealing directly with employees by surveying employees represent- ed by the Union regarding their preferences among benefits not currently provided. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, recognize and bargain with Hos- pital, Professional and Allied Employees of New Jersey as the exclusive representative of the em- ployees in the following appropriate unit concern- ing terms and conditions of employment and, if an understanding is reached, embody the understand- ing in a signed agreement: All full-time and regular part-time registered nurses, graduate nurses and nurse anesthetists employed at Respondent's Sussex and Franklin facilities, but excluding all other professional employees, director of patient care service, in- service educator, health care coordinator, watchmen, guards, all other employees and all supervisors as defmed in the Act. (b) On request, rescind all unilateral changes found unlawful herein. (c) Post at its Sussex and Franklin, New Jersey facilities copies of the attached notice marked "Ap- pendix." 39 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 39 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 The National Labor Relations Board has found that we violated 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 representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain collectively with Hospital, Professional and Allied Employees of New Jersey as the exclusive representative of our employees in the bargaining unit described below. WE WILL NOT make unilateral changes in the terms and conditions of employment of employees represented by the Union. WE WILL NOT bypass the Union and deal direct- ly with employees by surveying employees repre- sented by the Union regarding their preferences among benefits not currently provided. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with the Union, as the exclusive representative of ALEXANDER LINN HOSPITAL ASSN. 113 all employees in the unit, described below, with re- spect to rates of pay, wages, hours of employment, or other terms and conditions of employment and, if any understanding be reached, embody such un- derstandings in a signed agreement: All full-time and regular part-time registered nurses, graduate nurses and nurse anesthetists employed at our Sussex and Franklin facilities, but excluding all other professional employees, director of patient care service, in-service edu- cator, health care coordinator, watchmen, guards, all other employees and all supervisors as defined in the Act. WE WILL, on request of the Union, rescind all unilateral changes made in the terms and conditions of employment of employees represented by the Union. WALLKILL VALLEY GENERAL HOSPI- TAL A/K/A ALEXANDER LINN HOSPI- TAL J. Michael Lightner, Esq., for the General Counsel. James B. Clark Esq., for the Respondent. DECISION STATEMENT OF THE CASE EDWIN H. BENNETT, Administrative Law Judge. This proceeding was heard on January 23, 1980, in Franklin, New Jersey, pursuant to a complaint issued in Case 22- CA-9110 on May 24, 1979, on a charge filed on March 30, 1979, and a complaint issued in Case 22-CA-9329 on August 17, 1979, on a charge filed on June 28, 1979. The two cases were consolidated for hearing and thereafter the complaint as consolidated was amended a number of times with a substantial amendment being made at the hearing. The principal issues concern the allegations that the Respondent (the Hospital) violated Section 8(a)(1) and (5) of the Act by unlawfully refusing to recognize and bargain with the Hospital, Professional and Allied Employees of New Jersey (the Charging Party or Union) since May 1979, for a unit of registered nurses, and unilaterally changed terms of employment of the nurses in June 1979. Subsumed within this issue are ques- tions of whether the Hospital had a reasonably grounded good-faith doubt of the Union's majority status, and if it did whether the Hospital was privileged in refusing to bargain and in making the unilateral changes. Other issues concern allegations that the Hospital, during the life of a collective-bargaining agreement, violated Sec- tion 8(a)(5) of the Act by instituting unilateral wage changes and by engaging in direct bargaining with em- ployees. The Respondent has denied the commission of any unfair labor practices, but it admits many of the fac- tual allegations. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent maintains and operates various facilities in the State of New Jersey where it is engaged in the busi- ness of providing and performing services in the oper- ation of a voluntary nonprofit hospital, including an acute care center located in Sussex, New Jersey, and an ambulatory care center in Franklin, New Jersey, which are the only facilities involved in this proceeding. Re- spondent annually receives gross revenue in excess of $250,000 in the operation of its health care facilities of which in excess of $50,000 is received directly from pa- tients and customers from outside the State of New Jersey. The complaint alleges, Respondent admits, and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The com- plaint also alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background In July 1977 the Union was certified as the collective- bargaining representative for two separate employee units at the Sussex facility.' One was a unit of all full- time and regular part-time registered nurses, graduate nurses, and nurse anesthetists (the RN unit). The other unit consisted of all full-time and regular part-time li- censed practical nurses, graduate practical nurses, labora- tory technicians, X-ray technicians, and EKG/EEG technicians (techinical unit). Following a strike in early 1978, the parties entered into collective-bargaining agree- ments covering the two units that were effective by their terms for the period January 1 to December 31, 1978. In March and April 1978, Respondent committed cer- tain acts that thereafter became the subject of unfair labor practice charges in Cases 22-CA-8226, 22-CA- 8286, and 22-CA-8342. Following a trial before Admin- istrative Law Judge Thomas R. Wilks, a decision issued on March 26, 1979, in which Judge Wilks concluded that Respondent had unilaterally and permanently subcon- tracted certain EKG and stress testing work without having bargained with the Union concerning the decision and its effect and thereby violated Section 8(a)(5) of the Act. Judge Wilks further found that Respondent had vio- lated Section 8(a)(1) of the Act by discharging an em- ployee on April 17, 1978, because of her protected con- certed activities. On August 20, 1979, the Board, with certain minor modifications, affirmed Judge Wilks deci- sion in Alexander Linn Hospital Assn., 244 NLRB 387 (1979). At the time of the hearing before me, Respondent had not complied with that decision inasmuch as it was seeking court review thereof. B. Conduct Prior to the Expiration of the Contracts On September 29, 1978, the Union sent a letter to Raf- faele Marzella, the Hospital's administrator and admitted 1 At that time Respondent did not operate the Franklin facility. 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisor, reminding him that the two agreements were due to expire on December 31, 1978. The Union advised it intended to bargain for modifications of the agree- ments and requested that arrangements be made for ne- gotiations. The Union's letter was signed by Executive Chairperson Marie Boyko and President Ann Twomey. Also on September 29, 1978, registered nurse Lorraine Simons filed a petition for decertification in the Newark Regional Office, docketed as Case 22-RD-525, which as- serted that it was supported by 30 percent or more of the 66 employees in the RN unit (the parties agree that prior to the expiration of the contract there were approximate- ly 60 employees in the RN unit). 2 On the following day Simons, whose uncontroverted testimony I credit, chanced to meet Marzella in the Hospital cafeteria and told him that she had filed the RD petition and that "we felt that there was a majority who did not want the union." Apparently, about that same time, the Hospital had re- ceived additional moneys as a consequence of successful appeals it had made to the authorities for adjustments in rates covering prior years. Marzella had requested a meeting with Boyko for the purpose of discussing the distribution of those moneys to employees. Boyko re- sponded by letter to Marzella dated October 5, 1978, stating the Union's intention to meet with the Hospital but asking for a written agenda of the proposed meeting because any discussion of wages would be viewed by the Union as the Hospital's response to the Union's Septem- ber 29 bargaining request for a new contract. Marzella's written reply also dated October 5, reiterated his intent of the proposed meeting only was to discuss the dis- bursement of moneys received by the Hospital in order to make wage adjustments for the Hospital's employees, and not to make any contract proposal. Inasmuch as the Hospital did not intend a bargaining session Marzella canceled the meeting. In addition, he referred to the de- certification petition and advised "there is now a ques- tion as to whether or not the union continues to repre- sent a majority of our employees in the two units." Nev- ertheless, he reiterated the Hospital's position that it wel- comed the Union's imput on the distribution of the excess moneys, which had been received and proposed an adjustment of 15 cents an hour effective during the pay period ending October 7, 1978. The letter closed by stating "we would like to make it clear, however, that this letter should not be construed as a waiver of any of the Hospital's rights under law to contest the union's ma- jority status, and should not be further construed as a re- newed recognition of union representation." By October 13, 1978, Marzella, not having received a reply to the letter, wrote Boyko that in the absence of a union objec- tion, wages of bargaining unit employees would be in- creased on the same basis used to adjust nonunit employ- ees. More importantly, Marzella reiterated that the de- certification petition created uncertainty as to the contin- ued majority status of the Union, that the Hospital was reserving its rights to question that status, and that the The Region mailed formal notification of the petition to the Hospital on October 2. A second decertification petition also was filed with re- spect to the technical unit Hospital's actions should not be construed as a relin- quishment of any such rights. On October 16, 1978, the Hospital, through its attor- ney James Clark, wrote to Region 22 that it had heard the Region did not intend to process the decertification petition because of the pending cases before Judge Wilks. Attorney Clark pointed out that the petitions, "combined with other factors at the hospital," led it "to question the majority representation by the union." The Hospital be- lieved the pending unfair labor practice case had no bearing on the decertification petition and requested the Board to continue its processing. On October 25, the Re- gional Director replied to Attorney Clark that the peti- tions would be held in abeyance pending the disposition of the earlier unfair labor practice cases. On October 31, 1978, the Hospital filed a request for review with the Board of the Regional Director's determination, which request was denied by the Board. During this same period of time the Hospital sought to obtain from the Region information with respect to the numerical sup- port filed with the decertification petition and advised the Region that there were 63 named employees in the registered nurse union as of September 23, 1978. On No- vember 28, the Region denied the Respondent's request for the information concerning the support to the decer- tification petition. It is in this posture that the Hospital committed a series of acts in November and December 1978 that al- legedly violated its bargaining obligations to the Union. First, it is alleged that in that period of time the Hospital questioned individual employees in the two units regard- ing their preferences for certain medical/dental and pen- sion benefits, which they did not then enjoy. The evi- dence with respect to this issue is not in substantial dis- pute. At a supervisors' meeting on November 8, 1978, Steven Kirby, the Hospital comptroller, announced to those assembled that his department intended to do a benefit survey, similar to a census, to compile informa- tion regarding employee preferences among three possi- ble benefits: major medical, dental insurance, and pen- sion. The information was being sought as part of a study to be made with insurance companies regarding the feasibility of purchasing these benefits. He empha- sized that no additional benefits were being considered or offered at that time and supervisors were told to survey employees by having them fill out a form, which he then distributed, but to limit the inquiry to employees working more than 20 hours a week in accordance with advice given by insurance companies. Kirby further in- structed the supervisors that they were not to promise increased benefits to employees. The form itself was enti- tled "Benefit Survey" and contained six columns with the following headings: Employee name, sex, married (yes/no), number of dependent children, children's ages, type of coverage required (i.e., single, husband-wife, parent-child, family, parent-2 children). Then there were three columns under the heading, "Rank Of Impor- tance," listing the three possibilities of major medical, dental insurance, and pension. Employees were to signify their first, second, and third choice. ALEXANDER LINN HOSPITAL ASSN. 115 Following the meeting, various supervisors from time to time questioned all employees working more than 20 hours a week including unit and nonunit employees and supervisors in order to fill out the benefit survey form. The General Counsel adduced testimony from a number of employees regarding the method followed. Marie Boyko testified that when her supervisor questioned her she said only that a survey was being taken. Although Boyko asked the supervisor whether that survey would result in employees receiving any of the benefits men- tioned, the supervisor replied she did not know and she had been told by her superiors merely to take the survey. Judith Robino, a registered nurse, testified that her su- pervisor asked her to fill out the form stating only that the Hospital was desirous of knowing which of the three benefits she preferred in the event such benefits would be given. However, the supervisor did not say that any benefit would ever be granted. Cynthia Shanahan, a technician, testified that her supervisor asked which of the benefits she would prefer in the event the Hospital ever instituted any of the benefits and in response to Shanahan's question whether any benefit was likely, the supervisor replied that the Hospital was not planning to make any of these benefits effective. Kirby testified that approximately 130 individuals were surveyed and the greatest interest was for a major medi- cal plan with the least interest expressed for a pension plan. Kirby further testified, without contradiction, that no change in benefits of any kind ever was made as a consequence of that survey, and that no employee had any of the coverages mentioned at the time of the survey. It also is undisputed that during the negotiations that led to the collective-bargaining agreements entered into in 1978 the Union unsuccessfully sought benefits of the types here involved. It also is alleged that in the period of December 5 to 21, 1978, Respondent unilaterally reduced wages paid to employees in both units and thereafter misrepresented the Union's position concerning such reductions. This al- legation concerns action taken by the Hospital to correct a payroll error, which the General Counsel does not dis- pute, and which came about in the following way. Apparently, pursuant to checkoff provisions in the contracts, Respondent had been submitting to the Union dues on behalf of various employees. On December 5, Kirby was told by accounting manager of an error just discovered in the preparation of previous payrolls by an outside firm. Although the payroll sheets showed that dues had been deducted from various employees, in fact they had not been, but the Hospital believing that such deductions had been made had been sending these moneys to the Union. A total of 13 employees were in- volved and the amounts ranged from $1.60 to $38.60. Kirby testified that the error required immediate correc- tion because only two paychecks remained to be paid in the calendar year and for tax and accounting purposes all records had to be accurate by the end of the year. Kirby decided to correct the error by recouping the amounts that should have been withheld in two installments where the amount exceeded $10, and where it was less than $10, from the very next payroll, which was being prepared that day. Although Kirby concluded that he had the lawful right to correct the error without union approval, he nevertheless thought it advisable to inform the Union how he intended to correct the errors. Be- cause Boyko, the Union's chief representative at the Hos- pital, worked a late shift, Kirby waited until the after- noon to telephone her. Boyko and Kirby agree she was advised of the errors and the procedure for making the corrections. Boyko asked Kirby to withhold action until she could discuss the matter with her superiors in the Union. After speaking with Twomey, Boyko phoned Kirby and told him that the Union wished to work out an agreement concerning the repayments. Kirby replied that it was not a union problem but rather was a payroll error, and that the decision on how to correct it had been made. Boyko said the Union would file a grievance. Boyko further attributed to Kirby a statement to the effect that the union people were always causing trouble at the Hospital, a remark denied by Kirby, who testified that the word "problem" was used only in connection with his telling Boyko that the matter was not a union problem and was not an issue worth having a war over. According to Kirby, he and Boyko were on a first-name basis and the conversation was conducted in that con- text. Although it is not entirely clear how the disputed remark materially advances the General Counsel's case, I do not credit it. Kirby's denial, and his version of the conversation, is more consistent with the chain of events and the otherwise undisputed conversation. Prior to calling Boyko, Kirby also sought to inform other union representatives at work in the Hospital in the morning and was able to contact Miriam Pedersen and Judith Robino. Again, there is basic agreement that Kirby informed these employees of the problem and the manner of adjustment. Kirby also advised that if this caused a hardship to any employee he would be willing to work out an alternative arrangement with that em- ployee. Both employees testified that Kirby did not solic- it, nor did they grant, consent to the proposed action, and Kirby's statements to them were not couched in the language of a company to a union representative. On December 6, Twomey wrote to Marzella concern- ing the dues-deduction problem. She requested bargain- ing to achieve an agreement for resolving the over pay- ments, and that it not act until the Hospital provided proper documentation and received proper authorization from all employees involved. The paychecks issued De- cember 7 reflected the first of the adjustments and a letter of explanation was given to the employees in- volved. On December 11, Marzella replied to Twomey's letter. He stated that the Hospital has acted in good faith and it was his understanding that the employees who had been spoken to not only understood the problem but had not objected to the solution proposed by the Hospital, except for Boyko. He furnished Twomey with a copy of the letter, which had been given to each of the affected employees. In it, Kirby explained the error and the need to make a correction before the end of the year. He fur- ther stated that union representatives from both bargain- ing units had been contacted, given an explanation of the problem, the two-step procedure for recouping the moneys, and that "since the representatives felt this was 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reasonable I asked them to inform other members who might be affected and assured them I would speak with you at a convenient time later in the afternoon." The letter went on to cite the amount involved and conclud- ed with an apology for any inconvenience caused the employee who was asked to contact Kirby if the action caused undue hardship. The General Counsel asserts that the implication of union consent to the Hospital's action constituted a misrepresentation to bargaining unit em- ployees of the union position, and thereby was a viola- tion of Section 8(a)(1) and (5) of the Act. On December 12, each of the employees affected by the dues problem sent identical letters to Kirby objecting to the Hospital's action, asserting that the error had not been verified and concluding that a grievance over the unilateral action of the Hospital was being filed. On De- cember 22 Kirby replied to each of the employees, reit- erating the problem and advising that verification of the error could be made by examining a paystub from a prior period and subtracting all deductions listed thereon from the gross pay. This computation would show they received more as net pay than they should have with the difference being the amount for union dues. He further reminded them that if the Hospital's action had caused undue hardship they had been asked to contact Kirby at that time. In fact, the Union had initiated a grievance on December 11, 1978, which was responded to by the Hos- pital on December 18. In that response the Hospital denied the Union's accusation that it had arbitrarily and capriciously asserted again that the Hospital had not become aware of the error until the morning of Decem- ber 5, had acted in a prudent, thoughtful, and legal manner, and that it was not required to obtain the Union's approval to correct payroll errors either by the contract or by operation of law. Eventually the griev- ance was withdrawn by the Union as it believed no meaningful remedy could be obtained. As noted, the General Counsel does not dispute the fact of the payroll errors resulting in overpayments to employees but con- tends the Hospital's actions in correcting those errors constituted unilateral "wage" reductions. C. Events Subsequent to the Expiration of the Contract As described above, the Hospital on a number of occa- sions prior to December 31, 1978, questioned the Union's majority status and declined to enter into negotiations for successor agreements. On January 2, 1979, the Hospital sent the Union a memo confirming earlier arrangements for a meeting to resolve grievances, which had arisen during the life of the expired agreements. The memo also stated "this meeting should not be construed as the be- ginning of negotiations towards a renewal agreement," that the Hospital reserved "all rights to question the Union majority status," and that such position was being taken because of the decertification petition "as well as other objective considerations which warrant questioning the continued majority status of the union." At that time the bargaining units were confined to the Sussex facility and it is well to note that Respondent's refusal to meet and bargain for new collective-bargaining agreements for either unit, up to this juncture, is not alleged as a viola- tion. The General Counsel concedes that the decertifica- tion petitions excused such refusal. From this point on, the case essentially concerns only the RN unit and Re- spondent's conduct with respect thereto in light of its ac- quisition of the Franklin facility in April 1979. The Sussex facility then was known as the Alexander Linn Hospital. In April 1979, it entered into a merger agree- ment with the Franklin Hospital in Franklin, New Jersey. The result was the creation of Respondent in its present form, which took the name Wallkill Valley Gen- eral Hospital. The Franldin Hospital name disappeared although the Alexander Linn Hospital Association name continued and was applied to the two locations. The actual merger of operations, that is the transfer of em- ployees and operations, became effective in early May 1979. During April 1979, Marzella conducted a number of meetings with all employees at both facilities to advise them concerning the timing and consequences of the merger. He testified that in response to employee's ques- tions he may have discussed the possibility that there would be changes in benefits, wages, hours, and transfer of employees. However, he could not recall what specif- ic information, if any, he transmitted, merely that there would be some changes made because of the fact of the merger. 3 Marzella's uncontroverted and credited testimo- ny also reveals that during these meetings registered nurses at the Franklin facility asked questions concerning what status the Union would have after the merger, to which many of the Franklin nurses themselves responded by stating "they didn't want no part of any union" while some of the Sussex nurses remarked that they did not desire to have continued represehtation by the Union. It is undisputed that in early May 1979 the two hospi- tals began operating on an integrated basis while continu- ing to render substantially the same patient care as before the merger. Thus, both locations remained in existence except that the Sussex facility became an acute care center while the newly merged operation in Franklin, ap- proximately 7 miles distant, was utilized for out-patient purposes. While Respondent retained the same employ- ees, supervisory, and managerial staff, the 15 registered nurses employed at Franklin were transfered to Sussex thereby increasing the number of registered nurses at that location from approximately 60 to approximately 75. On April 8, 1979, Twomey wrote to Marzella request- ing information with respect to the merger insofar as it would effect terms and conditions of employment. On April 18, Marzella responded that he would furnish all information with respect to the merger insofar as it would effect terms and conditions of employment. On April 18, Marzella responded that he would furnish all information with respect to the questions raised as soon as such information became available to him. On May 18, 3 Marzella was the only witness to testify with respect to these staff meetings and it is based on his testimony that the General Counsel amended the complaint at the hearing to allege that such meetings consti- tuted direct bargaining with employees m both units at Sussex in viola- tion of Sec. 8(a)(5) of the Act, notwithstandmg the concession that the certified technical umt was destroyed as a result of the actual merger I month later, and that total withdrawal of recognition from the technical unit was not a violation of the Act ALEXANDER LINN HOSPITAL ASSN. 117 Twomey wrote to Marzella requesting that negotiations begin with the Union with respect to . the RN unit and technical unit. On May 24, 1979, Marzella responded, ad- vising that the Hospital "will not agaree to negotiate with the [Union] because the Hospital has a serious and good faith doubt that the [Union] continues to represent a majority of the Hospital employees in a Unit appropri- ate for bargaining." The Hospital bases its doubt on sev- eral factors including the following: 1. [The Union] engaged in a strike at Alexander Linn Hospital in early 1978, and out of approxi- mately 90 employees in the Bargaining Units, only 28 did not work during the strike. The balance of the employees continued to work. 2. Several of the 28 employees who did not work during the 1978 strike were replaced. 3. There had been a turnover in employees in the Bargaining Units. 4. We received a Petition filed with the National Labor Relations Board by the employees of the Hospital and are informed that a majority of our employees have requested that the [Board] to hold an election to determine whether the [Union] con- tinues to represent the employees. 5. There currently are 14 employees authorizing dues deduction from their salaries and remittance to the union out of approximately 150 employees in the combined Wallkill Valley General Hospital Units. 6. We understand that the employees at the Am- bulatory Care Center of Wallkill Valley General Hospital, after receiving an invitation from the [Union], have expressed almost unanimous rejection of the [Union]. 7. The merger of Alexander Linn Hospital and Franklin Hospital into the Wallkill Valley General Hospital has created a new and more expanded Bar- gaining Unit to the extent that the number of em- ployees authorizing dues deduction (14) out of a total of about 150 employees is less than 10% inter- est in the [Union]. The letter concluded by declining to recognize and bar- gain and expressed a belief that the fairest procedure would be an election under the auspices of the Board.4 The reference in the May 24, 1979 letter to the rejec- tion of union representation by the nurses at Franklin (item 6 of the letter) is based on the following events. On May 21, Twomey wrote to Rosemary Fatzinger advising her that the Union represented the nurses and technicians at Sussex and that as problems resulting from the merger were of common concern to all the opinions and con- cerns of the Franklin employees were solicited. She sug- gested they meet to exchange ideas and information and signed the letter as president of the Union. It appears that Twomey wrote to Fatzinger because she was presi- dent of the Franklin Nurses club, a social organization 4 It is this May 24 letter that forms the basis for the General Counsel's allegations that Respondent has failed and refused to bargain or alterna- tively has withdrawn recognition from the Union with respect to the RN unit compromised of anywhere from 10 to 22 members de- pending on the particular social function that was being conducted at any given time. Fatzinger described the club as including registered nurses, licensed practical nurses, aides, and supervisors, and Fatzinger herself was an LPN. Fatzinger testified that Twomey's letter had been left for her at the office of Director of Nurses Latham at Franklin (a supervisory position) and treasurer of the club. Latham gave the letter to Fatzinger who read it out loud while they and other club members were in the lounge. A discussion ensued during which all of those present viewed Twomey's letter as another solicita- tion for their membership in the Union. According to Fatzinger, this was not the first communication from the Union and all the employees had been discussing the question of unionization for some time. Among the group of employees who assembled around Fatzinger were at least seven registered nurses and Latham. The employees were unanimous that they did not desire to have union representation. As Fatzinger testified, "The general opinion was I don't feel that there is a place for a union in a hospital or health facility." Fatzinger be- lieved that perhaps another supervisor besides Latham was aware of the sentiments expressed. On May 22, 1979, Fatzinger wrote to Twomey that: "The possibility of joining a union has been discussed at length with most of the nurses. We are in total agree- ment that joining a union at this time is out of the ques- tion. However, if we should have a change of opinion we will contact you for further information." The letter was signed by Fatzinger on behalf of the Franklin Hospi- tals Nurses Club, who gave both letters to the adminis- trator at Franklin who in turn passed them on to Mar- zella. Inasmuch as the employees at the two locations did not have the same working conditions, Respondent took action designed to achieve uniformly at a level equal to the best benefit then enjoyed by employees at either lo- cation. The changes in working conditions necessary to accomplish this went into effect about June 25, 1979, and were recited in a memo distributed to all employees by Marlin Cox who was president of the board of trustees. The memo described the intent of the Hospital and gave examples of how and why the new rates of pay and other changes were made. The net effect was that the registered nurses received an increase in their hourly rate to bring them up to par with the hourly rate, as recom- puted, for the nurses at Franklin. The sick benefits, the savings bonds program, and the on-call pay rate were de- termined to have been more beneficial at the Franklin lo- cation. When those benefits were applied uniformly, the nurses at Sussex experienced a change. On the other hand the nurses at Sussex enjoyed better benefits regard- ing vacations, personal days, and holidays. Consequently those benefits were applied to all, resulting in changes for the Franklin nurses. D. Status of the Representation Cases Following the issuance of Judge Wilks' decision and because of the issuance of the complaint in Case 22-CA- 9110, Region 22, on May 24, 1979, dismissed the decerti- 118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fication petitions. On June 4, Respondent filed a request for review, supplemented on August 6, urging that an election be conducted because it had objective consider- ations for doubting the majority status of the Union. On July 13, 1979, Respondent for the same reasons filed RM petitons. 5 On September 10, 1979, the Board issued a ruling holding, in pertinent part, "the Board concluded that its Order in Case 22-CA-8226 et al. (244 NLRB [387]) and the alleged refusal to bargain violation in Case 22-CA-9110 are of a type which does not preclude the existence of a question concerning representation. See Big Three Industries, 201 NLRB 197 [(1973)]. According- ly, the petitions are hereby reinstated and the cases re- manded to the Regional Director for further appropriate action upon compliance of the aforesaid order and dispo- sition of the other unfair labor practice case." On Sep- tember 26, the Regional Director reinstated the decertifi- cation petition but advised that it would be held in abey- ance pending compliance with the decision in 244 NLRB 387 and disposition of the complaints in the instant mat- ters. On October 1, 1979, the Respondent requested review of this action which was denied by the Board on October 19, 1979. While these representation proceedings were being processed, the Union, on September 24, re- newed its request to Respondent for bargaining, and on October 11, 1979, Respondent denied it for the reasons previously asserted in its May 24, 1979 letter. III. ANALYSIS AND CONCLUSIONS A. The Alleged Direct Dealing with Employees and Unilateral Changes Prior to the Expiration of the Contract The General Counsel alleges that by acting as it did in December 1978, in correcting the dues-deduction error, Respondent unilaterally reduced wages, engaged in direct bargaining with employees, and thereafter misrep- resented the Union's position, all in violation of Section 8(aX5) of the Act. Respondent admits the conduct, but takes issue with the legal conclusions drawn by the Gen- eral Counsel and argues that in any event the entire matter is so trivial or de minimis as not to constitute a violation of the Act. The General Counsel correctly states, and Respondent does not dispute, that employers may not unilaterally affect changes in working conditions, which are manda- tory subjects of collective bargaining. NLRB v. Katz, 369 U.S. 736 (1962), and Medo Photo Supply Corp. v. NLRB, 321 U.S. 678 (1944). However, the question here present- ed is whether the conduct in issue resulted in a wage change. I believe not. Although the amounts received by the 13 employees in the 2 paychecks involved may have been less than what they normally received, 6 it is most inaccurate to characterize Respondent's action as a re- duction in wages. It so obviously was not, that it seems redundant to have to state it. Wages, as such, underwent no change whatsoever and the allegation that they were reduced unilaterally simply is without factual support and is dismissed as lacking in merit. 6 Hereinafter reference will be made only to the RN unit 6 It is not clear from the record that net pay was a constant amount However, Respondent did correct a payroll error and recouped from employees moneys properly belonging to it without bargaining with the Union and in so doing it did "deal" directly with employees. Although Respond- ent notified Boyko, Pederson, and Robino, it did not bar- gain with the Union over the issue, for it is clear and not disputed by Respondent's evidence, that Kirby merely informed them of an action already decided on. 7 Kirby's action in this regard, however, demonstrates that Re- spondent had due regard for the Union's representative status and that it was not embarked on a campaign de- signed to bypass the Union or to disparage it in the eyes of employees, factors that I have considered in conclud- ing that under all the circumstances Respondent did not violate the Act in connection with the dues correction.5 Assuming arguendo that the kind of payroll correction here in issue rises to the level of a mandatory subject of bargaining, and the General Counsel cites no authority to that effect, the propositions of law recited by Admin- istrative Law Judge Samuel M. Singer in Postal Service, 203 NLRB 916, 919 (1973), are applicable here: However, the Board and courts have also held that not all direct dealings and unilateral actions are un- lawful. Such conduct may be immunized where it appears for example, that the employer's conduct falls within the realm of management preogatives; . . . requires prompt attention because of business necessity; or the changes involved are trivial, of a de minimis nature, or have only a slight or insub- stantial impact. . . . In the transaction under consideration there were no per- manent changes in wages or the method of payment, only a handful of employees in the two bargaining units were involved, the amounts of money were insubstantial, the payroll corrections had no lasting, continuing, or substantial impact on wages, there was a reasonable busi- ness necessity for immediate action, and it was so clearly justifiable and of an administrative nature as to constitute a management prerogative.5 Where, as here, there has been no material, substantial, or significant change in a condition of employment, the unilateral action will not constitute a breach of an em- ployer's bargaining obligation. Cooper-Jarrett, Inc., 239 NLRB 840 (1978), Peerless Food Products, 236 NLRB 161 (1978). The allegation of unilateral wage deduction and 7 Boyko was the chief union official in the Hospital, Pederson and Robino were representatives. 8 In all of its dealings with the Union during this period of time, Re- spondent took pains to acknowledge, as it should have, the Union's repre- sentative status while expressing doubt that such status would exist after the expiration of the contract. I mention this not because Respondent is entitled to extra credit for complying with the law, but to show that the context in which the violations are alleged to have occurred was free of rancor or hostility toward the Union. 9 The General Counsel's reliance on Orange County Machine Works, 147 NLRB 1004 (1964), is misplaced. In that case the employer made a permanent change in payroll deductions of taxes from weekly to monthly basis thus affecting on a continuing basis the regular take-home pay of all employees. Such action, the Board concluded, affected the amount re- ceived by employees each pay period andtherefore constituted a substan- tial element of the employment condition. Factually, the instant case is poles apart. ALEXANDER LINN HOSPITAL ASSN. 119 direct dealing in December 1978 will therefore be dis- missed. The General Counsel also asserts that by deliberately misinforming the employees that the Union had consent- ed to Respondent's action an additional violation of Sec- tion 8(a)(5) of the Act was committed on theory that the communication was designed to undermine the Union. Having found no obligation on the part of the Hospital to bargain about the payroll correction, it follows, and I find, that the Hospital did not violate its bargaining obli- gation by informing employees of the action taken even if the hosition of the Union was not reflected with 100- percent accuracy. Examination of the communication discloses no coercive sentiments or hostility toward the Union, but rather is a measured and careful explanation of the reasons for the payroll action being taken. If any- thing, it expressed a recognition by the Hospital that the Union was consulted and thereby it enhanced and did not detract from the position of the Union. Moreover, the reactions of Pederson and Robino accorded Kirby a reasonable basis for believing "the representatives felt this was reasonable," to quote from the letter to employ- ees. Furthermore, even if Respondent violated the Act with respect to the payroll correction, I still would find no violation with respect to the communication. The cases relied on by the General Counsel" involved situa- tions in which a respondent, during the course of bad- faith bargaining as evidenced by various forms of con- duct, also engaged in an extensive communication cam- paign designed to undermine the union, to distort the union's presentations during the course of bargaining, and to direct from the union's status as the exclusive bar- gaining representative. Those cases clearly are inapposite to the factual situation present here, where the communi- cation was a signle one, it was not made in the course of bargaining, bad-faith or otherwise, but rather dealt with a special, isolated situation, was facially noncoercive, was issued in a context free of any other conduct de- signed to disparage the Union, and indeed acknowledged the Union's representative role in an affirmative way. Accordingly, I shall recommend dismissal of this allega- tion. Next is the allegation that Respondent, by its benefit survey conducted in November and December 1978, in which employees were requested to state their prefer- ence among three classes of benefits, bypassed the Union and directly bargained with employees in violation of the Act. Here again, Respondent urges a dismissal on the grounds the conduct involved was de minimis or trivial. The evidence does demonstrate that Respondent did seek an expression of preference from unit employees, and others, concerning a matter that clearly constituted a mandatory subject of bargaining, namely, a fringe bene- fits program. However, under all the circumstances, I conclude that this action did not amount to a violation of the Act. It is undisputed that Respondent made no prom- ises or even indicated the possibility that a change in em- ployment conditions would result from the benefit survey. Rather, Respondent informed employees who 10 See, for example, Fitzgerald Mills Corp., 133 NLRB 877 (1961). were questioned that there was no reason to believe that benefits would flow as a result of the information ob- tained. Respondent undertook the survey among unit as well as nonunit employees for the limited purpose of gathering information, which would be useful in deter- mining the cost for any such fringe benefits program. The possible future use of the information was highly speculative and in fact no changes in employment condi- tions were made as a result of the information obtained. The survey was not confined to unit employees but in- cluded every employee in the Hospital from management on down. Although it is true that employees were re- quested to state a priority among three types of benefit programs, they were asked additional census-type infor- mation, that management had a right to ascertain not- withstanding that the employees were then represented by the Union." The General Counsel contends this issue is controlled by cases such as Obie Pacific, Inc., 196 NLRB 458 (1972), and Shenango Steel Building, 231 NLRB 586 (1977), which assertedly hold that an employer must ascertain employee opinion concerning a mandatory subject of bargaining through the exclusive bargaining representa- tive and the failure to do so constitutes a violation of the Act. I do not read these cases as establishing such propo- sition. Rather, these cases disclose that the findings of violation were premised on the fact that the employer there sought to obtain information at a time when the parties were engaged in bargaining about the very sub- ject matter that the employer presented directly to em- ployees. The vice of such activity is that it erodes the union's bargaining position and impedes collective bar- gaining with the union by giving the employer assur- ances concerning individual employee positions. The ex- clusivity of the union as the bargaining agent is then un- lawfully bypassed. In the instant matter Respondent did not solicit infor- mation for bargaining purposes. Rather, it sought infor- mation as part of a general employee survey for the sole purpose of exploring the potential cost of such benefits from different insurance companies as such benefits might apply to all employees, not only those represented by the Union. It was seeking to learn, in a general way, what sort of benefits might be of interest to employees as a whole. The General Counsel does not cite, nor am I aware of, authority for concluding the kind of activity engaged in here violates the Act. Under all the circum- stances, the survey cannot reasonably be said to have had an impact on working conditions or to have had sub- stantial interference in the role of the Union as the exclu- sive bargaining representative. Therefore, I shall recom- mend dismissal of this allegation. " Certainly It would not be urged, and It is not urged here, that an employer violates the law by questioning the employees about their man- tal status and size of the family as this type of information normally is obtained by an employer during the course of any employment situation. As I understand the General Counsel's case, it is only the request that employees state a preference with respect to bargainable Items that the violation exists. 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Refusal to Continue Recognizing the Union in the RN Unit and the Unilateral Changes After the Merger The General Counsel contends that Respondent by its letter of May 24, 1979, withdrew recognition from the Union with respect to the RN unit and thereafter made unilateral changes in terms and conditions of employ- ment in violation of Section 8(a)(5) of the Act. Prior to considering these specific allegations, the validity of the decertification petition filed on September 29, 1978, de- serves discussion inasmuch as it is of overriding signifi- cance to the remaining issues in the case. The petition on its face states that it had the support of at least 30 percent of the employees in the RN unit and no one asserts otherwise (Respondent's attempt to learn the precise percentages was rejected by the Regional Di- rector). In addition, the General Counsel does not con- tend that it was untimely filed with respect to the expira- tion date of the contract. Therefore, unless the petition was tainted by Respondent misconduct, it must be viewed as a validly filed petition. No evidence was pre- sented, nor is any argument advanced, suggesting that the Hospital by any specific actions unlawfully encour- aged, sponsored, supported, or contributed to the filing of the petition or to the employee support of it. Al- though it initially was dismissed by the Regional Office because it was viewed as having a taint arising from the unremedied unfair labor practices found in the earlier proceeding, and the allegations of violation in the first of the instant charges, the petition was ordered reinstated by the Board, which rejected that approach relying on Big Three Industries, 201 NLRB 197 With respect to the alleged unlawful withdrawal of recognition based on the May 24, 1979 letter, the Gener- al Counsel does not point to any specific language in that letter, in support of such assertion, but relies on state- ments therein that Respondent "has a serious and good- faith doubt that [the Union] continues to represent a ma- jority of the Hospital employees,' and that in view of various factors supporting that doubt including the de- certification petition "it would be improper to recognize and bargain with the [Union]." I reject the General Counsel's position that the letter is sufficient to support the violation alleged, and moreover such allegation is in- consistent with the General Counsel's own statement of the law governing an employer's bargaining obligations in the face of a decertification petition. It will be recalled that as early as October 5, 1978, the Respondent advised the Union that in light of the decertification petition "there is now a question as to whether or not the Union continues to represent the majority of our employees," and on October 13, 1978, Respondent informed the Union that "we would like to reiterate our uncertainty as to your continued majority representation." On January 2, 1979, Respondent stated, with respect to any claims that the Union was entitled to continued recognition, "that the Hospital continues to reserve all rights to ques- 12 Thus, even if merit was found to the allegations of violation with respect to the November and December 1978 conduct, the nature and timing of such conduct would not affect the validity of the petition. The Board's holding is dispositive of that issue. tion the Union majority status" because of the decertifi- cation petition and other objective consideration. The phrase in the May 24, 1979 letter to the effect that Re- spondent believed it would be improper to recognize and bargain is no more than a reiteration of the then existing status between the parties, because the only aspect of recognition of concern to the Union was the demand as expressed in its May 18 letter that bargaining begin for a new contract. To seize on the word "recognize" to accord it any real legal significance would truly exalt form over substance. Thus, it is abundantly clear on this record that from January to May 18, 1979, the Union made no effort to negotiate a new agreement or to act in any other representative capacity. The May 24, 1979 letter in this context merely rejected yet another demand to negotiate a new agreement and did not add a new di- mension to the parties' relationship. Despite the foregoing, the General Counsel does not argue for a violation growing out of Respondent's admit- ted failure and refusal to negotiate for a new agreement at anytime prior to May 24, 1979. Indeed, the General Counsel asserts, and I agree, that the applicable law priv- ileged the Employer's action in this regard because the decertification petition, which I have concluded was val- idly filed, raised a real question concerning representa- tion (QCR) during the pendency of which the Hospital was excused from bargaining for a new agreement. Essex International, 222 NLRB 121 (1976), Teleautograph Corp., 199 NLRB 892 (1972). Having concluded that Respond- ent's May 24, 1979 letter was factually indistinguishable from its earlier conduct, it follows that the legal conse- quences of the same action must be the same and I shall dismiss the allegation that Respondent unlawfully with- drew recognition from the Union on May 24, 1979,13 The more troublesome aspect of this case is the con- tention that Respondent was obliged by the Act to bar- gain with the Union concerning the June 1979 changes made in the nurses' conditions of employment. The Gen- eral Counsel argues that even though the Hospital did not have to bargain for a new contract it could not total- ly withdraw recognition (as it was alleged to have done on May 24, 1979) or make unilateral changes in the nurses' employment conditions as it admittedly did in June 1979. The principles of law not disputed by Respondent and applicable as a starting point in the discussion are recited in Terrell Machine Co., 173 NLRB 1480, 1480-1481 (1969), as follows: It is well settled that a certified union, upon expi- ration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice 13 In view of my disposition below of the unilateral change allegation, I would find no merit to this "withdrawal of recognition" allegation in any event. Such action is permissable because, as I find below, the Hospi- tal had a good-faith doubt of the Union's continued majority status Upper Mississippi Towing Corp., 246 NLRB 262 (1979), and the cases cited at fn. 3 thereof (1973).12 ALEXANDER LINN HOSPITAL ASSN. 121 of employees. Accordingly, once the presumption is shown to be operative, a prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer af- firmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed ma- jority representative status; or (2) that the employ- er's refusal was predicated on a good-faith and rea- sonably grounded doubt of the union's continued majority status. As to the second of these, i.e., "good-faith doubt," two prerequisites for sustaining. the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time in which to undermine the union. These principles apply equally following the expiration of a collective-bargaining agreement. Barrington Plaza & Tragniew, 185 NLRB 962 (1970), enf. denied on other grounds sub nom. NLRB v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972). In my opinion, however, there are other questions that govern the outcome of this case. One is whether the good-faith doubt, which justifies a refusal to bargain,' permits as a corollary the institution of unilateral changes. I believe the following quotation from Upper' Mississippi Towing Corp., supra at 262, requires an affirm ative answer: . . . it is clear that employers may validly raise the "reasonable doubt of continued majority status" de-' fense against refusal-to-bargain allegations which are premised on unilateral changes in terms or con- ditions of employment, where the objective consid- erations on which the employer's doubt is based are known to the employer at the time of its unilateral changes, regardless of whether the employer's uni- lateral action was taken before or after it actually notified the union of its doubt of the union's contin- ued majority status. Accord: Stoner Rubber Co., 123 NLRB 1440 (1959), in which a majority of the Board, although splitting on the rationale for its conclusion, held that unilateral changes were permissible to the same extent as withdrawal of recognition once the employer established a good-faith doubt of majority status. Two members of the three- member majority would have found a violation as a result of unilateral changes if the General Counsel had been able to establish that the union continued to enjoy a majority in fact. In the present proceedings, as in Stoner, no such majority was established by the General Coun- sel. The General Counsel relies on Turbodyne Corp., 226 NLRB 522 (1976), for a seemingly contrary proposition. In Turbodyne, prior to the expiration of a contract an election was conducted with the incumbent and two other unions on the ballot. The incumbent union re- ceived 26 of 204 votes cast. Immediately on expiration of the agreement, the employer made certain unilateral changes that it defended on the ground that the validly filed petitions that resulted in the election raised a QCR which privileged such action. The judge rejected that contention holding that during the period of the unre- solved QCR (objections had been filed), the question of good-faith doubt of majority status of an incumbent union is irrelevant and the employer must await resolu- tion of that QCR before instituting any changes. The judge found an 8(a)(5) violation a holding adopted by the Board. However, the judge also concluded that it was doubtful the employer had overcome the presumption of majority status, which survived the expiration of the col- lective-bargaining agreement, because the incumbent union had filed timely objections to the election, that was then set aside on consent of all the parties. Under these circumstance, the judge believed it reasonable that the wrongful conduct had some affect on the vote. The Turbodyne decision was discussed in Lammert Industries, 229 NLRB 895 (1977), by Member Murphy in a concur- ring opinion who viewed Turbodyne as holding that a pe- tition will not support a good-faith doubt where prior to knowledge thereof an employer embarks on unfair labor practices, and by Members Penello and Walther who considered the Turbodyne holding applicable to a situa- tion in which an employer failed to maintain a neutral position with respect to competing labor organizations. Inasmuch as the Lammert case involved unfair labor practices negating a good-faith doubt contention, the ma- jority opinion of Chairman Fanning and Member Jenkins did not have occasions to discuss Turbodyne, although it should be noted that they reaffirmed their own "long- standing disavowal of the dictum in Telautograph Corpo- ration, 199 NLRB 892 (1972), that the filing of a decerti- fication petition suspends an Employer's bargaining obli- gation . . . ."14 In light of the reservations expressed by three Board members concerning the Turbodyne decision and the fac- tual distinctions between that case and the instant one, I believe the statement of the law as expressed in Upper Mississippi Towing Corp., supra, and Stoner Rubber Co., supra, more appropriately applicable here. The remaining question is whether a QCR, which is raised by a petition, in this case a decertification petition, is the legal equivalent for purposes of resolving a bar- gaining obligation with an incumbent union as a good- faith doubt of continued majority status. If it is, then the decertification petition alone justified the forming of a good-faith doubt of continued majority status thus ren- dering lawful the unilateral changes in June 1979." Al- though it may be that one is the practical equivalent of the other (for example Member Murphy in Lammert In- dustries, supra, states that knowledge of such petition does justify a reasonable doubt), the cases suggest that additional factors are required. 16 In any event, and for 14 Notwithstanding this view of Telautograph, the Board has adhered to the concept, and the General Counsel in this case upholds it. Essex International, supra. 15 It IS not alleged that the unilateral changes made by Respondent in June 1979 were instituted as a benefit timed to influence the outcome of a pending election and thus independently violative of Sec. 8(a)(I) of the Act. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). 16 It could be argued that inasmuch as an employer's good-faith doubt of majority status does not require proof of a loss of majority, the mere Continued 122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the reasons below, I find that there were additional ob- jective considerations known to, and relied on by the Hospital in forming a good-faith doubt of the Union's continued majority status, which justified a refusal to bargain. It will be recalled that when the decertification peti- tion was filed, the petitioner told Marzella that a majori- ty of the employees did not want the Union. In April 1979, at a time when Respondent was conducting meet- ings with the staffs of the two hospitals in anticipation of the impending merger, nurses at both locations expressed opposition to union representation after the merger. In addition, Marzella was given the Fatzinger letter to Twomey in May 1979, stating that most of the nurses (there were about 15 registered nurses) at Franklin re- jected union representation, a fact also known to Re- spondent through its supervisors who belonged to a social club at Franklin at which the nurses discussed and rejected Twomey's invitation to join the Union. Re- spondent therefore had objective and valid grounds for believmg that most of the nurses added to the RN unit, increasing its number from about 60 to 75, were opposed to union representation." Although new hires normally are presumed to desire union representation in the same ratio as present employees, 18 the known fact here effec- tively rebutted that presumption. These representations by employees, coupled with the decertification petition, were adequate, under established authority, to justify a good-faith and reasonably ground- ed doubt of the Union's continuing majority status prior to instituting changes in terms of employment with re- spect to the RN unit. Morse Electra Products Corp., 210 NLRB 1075 (1974), in which the Board upheld the ad- ministrative law judge's dismissal of an 8(a)(5) allegation based on unilateral wage changes and refusal to bargain following the expiration of a collective-bargaining agree- fact that 30 percent 'of employees reliably are known to have supported a petition should be adequate to raise in the employer's mind a good-faith belief that another 21 percent are of the same view. Furthermore, since a QCR relieves an employer of the requirement that it bargain, Shea Chem- ical Corp., 121 NLRB 1027 (1958), why should it not logically follow that to compel bargaining before necessary changes are made in working con- ditions would run counter to that rule. The unsettled nature of this point is reflected in court opimons as well. National Cash Register Co. NLRB, 494 F 2d 189 (8th Qr. 1974), in which the court, in referring to the effect of a decertification petition, states "that fact alone would justi- fy an employer in declining to bargain further" pending disposition of the petition Id at 194 Other courts require some other objective evidence in addition to the petition NLRB v. Grede Foundries, 628 F.2d 1 (D C. Cir. 1980) at fn. I. See also He/yenta Sugar Cooperative, 234 NLRB 638 (1978), in which the Board, in the absence of exceptions, declined to pass on the administrative law judge's holding that the employer could lawfully refuse to bargain during the pendency of a QCR raised by a decertifica- tion petition even though it appears that a good-faith doubt of majority status could not be asserted on that basis alone, and Glass Containers Carp, 243 NLRB 784 (1979), in which the Board, in the absence of ex- ceptions, did not pass on the administrative law judge's holdmg that an RD petition permitted a withdrawal of recognition under the Telauto- graph decision " Respondent agrees the enlarged RN unit is appropriate for bargain- ing. The General Counsel asserts the new employees merely were an ac- cretion to the certified unit, a view not shared by Respondent who con- tends a new unit was created aftei the merger I agree with the General Counsel, but that finding does not compel a finding of violation because the Respondent was entitled to, and did, rebut the presumption of majori- ty in the unit as enlarged. 18 See Laystrom Mfg. Co, 151 NLRB 1482, 1484 (1965) ment. The judge concluded that "the company has dem- onstrated that it had a serious doubt of a continuing ma- jority status of the union as manifested by the petition to revoke the union shop authorization, the petition to with- draw recogmtion from the union, and numerous state- ments made to it by its employees." Id. 1077. There is no indication in that decision that the decertification petition was known to have more than 30-percent support. It would also appear that the Board could not have placed significant reliance on the deauthorization petition, as loss of dues-paying members, let alone a petition that might lead to revocation of a dues authorization, never has been accepted as a valid indication of representative status. Orion Corp., 210 NLRB 633 (1974). See also Litton Business Systems, 205 NLRB 532 (1973), affd. in pertinent part 497 F.2d 262 (6th Cir. 1974), in which the Board noted that in addition to the decertification peti- tion the employer had been told by the attorney for the petitioner and another employee that the petition was supported by cards from a majority of the employees. The Board concluded this would have been sufficient to justify a refusal to bargain." It is evident from these cases that if the decertification petition, which raises a valid QCR, is not equatable to a good-faith doubt of majority status, the only additional factor required to make that transition is evidence of statements by employees, or their representatives, to the effect that the decertification movement had majority support. The Hospital was told precisely that by Simons, the petitioner, on the filing of the petition in September 1978, which comments were reinforced by other employ- ees in April 1979, and by the Fatzinger letter in May 1979, all prior to the alleged withdrawal of recognition on May 24, 1979, and the unilateral changes in June 1979. In reaching the conclusion that the Hospital had a rea- sonably grounded good-faith doubt of the Union's major- ity status based on objective considerations, I have given no weight at all to certain of the grounds asserted by the Hospital in its letter of May 24, 1979, to the Union, which are contrary to Board law. These include: the claim that only 28 of 90 employees who went on strike in early 1978 reported to work subsequently had been re- placed;20 that there was a turnover of employees in the bargaining units; 21 and that only 14 employees presently were authorizing dues deduction from 150 employees represented by the Union. 22 Aside from the legal insuffi- ciencies of these assertions, I note that in stating figures with respect to striking employees and those on dues 12 Although a bargaining order issued by the Board, it was based on findings that the employer embarked on a campaign of unfair labor prac- tices after the petition which tended to Interfere with the holding of a fair election. Also not relevant here is the further holding of the Board that even though the employer had demonstrated its good-faith doubt of ma- jority, the General Counsel could and did establish a majonty status in fact, arising from the presumption, which survived the expired agree- ment Coca-Cola Bottling Works, 186 NLRB 1050 (1970) 21 Odd Fellow Rebekah Home, 233 NLRB 143 (1977) 22 Orion Corp., supra ALEXANDER LINN HOSPITAL ASSN. 123 checkoff the Hospital included the total number of em- ployees in the two bargaining units." For the above reasons, I find that at the time the Hos- pital unilaterally changed the employment conditions in the RN unit, objective considerations had come to its at- tention, which gave it reason to have a good-faith doubt of the Union's majority status. I also find that the Hospi- tal formed its good-faith doubt in a context free of unfair labor practices, that it did not express its doubt in order to gain time in which to undermine the Union (in fact the Hospital continually sought a speedy election), and that there is no basis on which to hold that the Union in fact was the majority representative. Accordingly, the Hospital did not violate the Act as is alleged, in making the unilateral changes. Upper Mississippi Towing Corp., supra; Morse Electro Products Corp., supra; Stoner Rubber Co., supra. It also follows, and I find, for the same rea- sons, that the Hospital did not violate the Act by engag- ing in direct bargaining with employees in April 1979, as alleged by the General Counsel at the hearing. Further- more, this allegation is not persuasively supported by the evidence, as it rests exclusively on the vague, uncertain, and indefinite testimony of a single Respondent witness (Marzella) who could not recall to any degree what, if any, changes he announced at the meetings, let alone bargained for with unit employees.24 23 I am aware that the May 24 letter responded to the Union's letter of May 18, seeking bargaining in the two units. 24 My dismissal of the complaint for the reasons stated make It unnec- essary to pass on Respondent's affirmative defense as noted that the al- leged violations in May and June 1979 are barred by Sec 10(b) of the CONCLUSIONS OF LAW 1. Wallkill Valley General Hospital a/k/a Alexander Linn Hospital Association is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital Professional and Allied Employees of New Jersey is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Respondent has not violated the Act in any respect alleged in the consolidated complaint as amended. [Recommended Order omitted from publication.] Act. Respondent asserts that the charge in Case 22-CA-9110 filed on March 30, 1979, only alleged a refusal to furnish certain information, and direct bargaining dunng the contract It was the charge in Case 22-CA- 9329 filed on June 28, 1979, which alone could form the basis for any complaint allegations that Respondent unlawfully withdrew recognition and unilaterally changed terms of employment. Thus, the 10(b) date for such purposes, it is argued, would be December 28, 1978, well beyond October 5, 1978, when Respondent first advised the Union that it doubt- ed its continued majority status and canceled a meeting for the purpose of negotiating a successor contract. Therefore, It was in October that rec- ognition was "withdrawn" in exactly the same way that It was "with- drawn" in May 1979. The General Counsel responds to that argument by asserting that, although there was an expression of doubt in October 1978, Respondent continued to recognize and bargain with the Union through the life of its agreement and It could not be certain that It would refuse to bargain for a new agreement until January 1979. Further, the General Counsel asserts that the first charge while not specifically alleg- ing a withdrawal of recognition, nevertheless raised a claim of refusal to bargain and therefore is sufficient to support this complaint. Additionally, the General Counsel's allegations of postcontract violations in April, May, and June 1979, i.e., withdrawal of recognition and unilateral con- duct, all within the 10(b) period of the second charge, are claimed to be quite different from any conduct, which was committed in October 1978.