Human Development Association

1228 HUMAN DEVELOPMENT ASSN Human Development Association and District 1199, National Union of Hospital and Health Care Employees, R.W.D.S.U., AFL-CIO and Local 6, International Federation of Health Profes- sionals, International Longshoremen's Associa- tion, AFL-CIO, Party to the Contract. Case 29-CA-9367 May 22, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 4, 1985, Administrative Law Judge Arthur A. Herman issued the attached decision. Thereafter, on June 30, 1987, the judge issued the attached supplemental decision.' The Respondent and Local 6 filed exceptions and supporting briefs, and the General Counsel filed an answering brief. The General Counsel filed cross-exceptions and a supporting brief. The City of New York filed an amicus brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. The judge found, inter alia, consistent with the Board's Decisions and Orders in Res-Care, Inc., 280 NLRB 670 (1986), and Long Stretch Youth Homes, 280 NLRB 678 (1986), that the Respondent, Human Development Association (HDA), is an employer engaged in commerce within the mean- i The supplemental decision was issued pursuant to a July 31, 1986 Board Order remanding this proceeding to the judge for further consider- ation of the jurisdiction issue raised at the hearing by Local 6 alleging that the City of New York, an entity exempt under Sec 2(2) of the Act, exercises sufficient control over the Respondent 's labor relations so as to prevent the Respondent from engaging in meaningful collective -bargain- ing with Local 6 2 The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings The judge's supplemental decision contains an inadvertent error In the section of the supplemental decision entitled "Supplemental Findings of Fact," par II , L 7, the sentence "This is not to say that HDA sets the employees' wages" is corrected to read "This is not to say that HRA sets the employees' wages " The General Counsel's motion to strike portions of the Party to the Contract's brief in support of exceptions is denied Local 6, International Federation of Health Professionals filed motions to reopen the record and/or remand the case to the judge for further hearing The General Counsel opposed these motions We deny Local 6's motions because the additional evidence sought to be adduced , if admit- ted and credited, would not require a different result See Sec 102 48(d) of the Board's Rules and Regulations ing of Section 2(2), (6), and (7) of the Act, and that the Board should assert jurisdiction over the Re- spondent. We agree with the judge's conclusion that the general overall review exercised by the Human Resources Administration (HRA), a munic- ipal agency of the City of New York, over the Re- spondent does not sufficiently deprive the Re- spondent of the ultimate control over essential terms and conditions of employment to preclude it from engaging in meaningful collective bargaining. Accordingly, we find that it is proper to assert ju- risdiction over the Respondent.3 In his original decision and recommended Order in this case, issued prior to the Board's remand on the jurisdictional issue, the judge concluded that the Respondent violated Section 8(a)(2) and (1) of the Act by recognizing Local 6 as the exclusive bargaining representative of its home attendants on June 22, 1981, when Local 6 did not represent a valid majority of these employees. The judge fur- ther concluded that by executing and enforcing a collective-bargaining agreement containing a union- security clause covering the Respondent's home at- tendants on June 24, 1981, when Local 6 did not represent a valid majority of the home attendants, the Respondent violated Section 8(a)(3), (2), and (1) of the Act. The judge held that it was unlawful for the Respondent to have recognized Local 6 based on his determination that the appropriate unit consisted of 190 employees and that Local 6 had 100 valid authorization cards, 6 of which could not be counted toward majority support because they had been executed by individuals who had also signed District 1199 authorization cards. The judge concluded that Local 6 possessed only 94 valid cards and that, therefore, Local 6 did not represent a majority of the 190 unit employees at the time recognition was extended on June 22, 1981. The General Counsel asserts that the judge's fig- ures erroneously include five Local 6 cards that were executed after the June 22, 1981 recognition.4 We find merit to the General Counsel's exception and conclude that the five postrecognition cards should not be counted toward Local 6's majority In adopting the judge's finding that the control exercised by the City of New York in the area of health insurance is not sufficient to interfere with the Respondent's ability to bargain in a meaningful manner with Local 6 regarding all other terms and conditions of employment, we dis- avow the discussion contained in the "Analysis and Conclusions " section of his decision that no evidence was introduced to show either that the unions or the vendors were dissatisfied with the arrangement, or that some other arrangement would be more cost efficient Chairman Stephens agrees that jurisdiction is properly asserted under the standards of Res-Care and Long Stretch , and he further finds the asser- tion of jurisdiction consistent with the statutory standard under the ra- tionale expressed in his dissent in Res-Care and concurrence in Long Stretch 4 These are the cards of Ida Stotland , Mane Louisaiare, Madeline Hill, Felicia Calo , and Eulalie Campbelle 293 NLRB No. 140 HUMAN DEVELOPMENT ASSN. 1229 support. Excluding the five postrecognition cards reduces the number of valid authorization cards to 89. The Respondent and Local 6 except to the judge's finding that there were 190 employees in the appropriate unit at the time of recognition. In particular, the Respondent and Local 6 argue that employees Lumpris and Williams are "hold-on" employees and should not have been included in the unit. Local 6 also asserts that employee Mathew should have been included in the unit and her Local 6 card counted. Even if merit were found to these exceptions, Local 6 would have had at most 90 valid authorization cards in a unit of 189 employees, an insufficient number to establish ma- jority support. Accordingly, we find it unnecessary to resolve the issues these exceptions raise.5 Accordingly, we adopt the judge's findings that the Respondent violated Section 8(a)(2) and (1) by recognizing Local 6 at a time when it did not rep- resent a majority of the unit employees, and Sec- tion 8(a)(3), (2), and (1) by executing and enforcing its June 24, 1981 collective-bargaining agreement containing a union-security clause and a dues-de- duction authorization clause on behalf of the mi- nority union. The judge correctly ordered the Respondent to reimburse all present and former unit employees, except those who joined or signed authorization cards for Local 6 prior to the execution of the col- lective-bargaining agreement, for moneys paid by or withheld from them on or after June 24, 1981, for initiation fees, dues, or other obligations of membership in Local 6. However, we modify the judge's decision, remedy, and recommended Order to the extent that it provides for reimbursement to the home attendants who are "dual card" signers, i.e., who signed authorization cards for both Local 6 and District 1199 prior to June 24, 1981.6 Al- though the Local 6 cards of the dual card signers were not counted for purposes of determining ma- jority support, the employees' signing cards for District 1199 does not vitiate the voluntary nature of their signing Local 6 cards.? But consistent with the Board's decision in Unit Train Coal Sales, we conclude that reimbursement is appropriate only with regard to employees who have been coerced into membership in Local 6 by virtue of the union- security clause in the unlawful collective- bargain- 5 The General Counsel raises several exceptions to the judge's determi- nation about the size of the unit at the time of recognition , which, if found to be meritorious, would increase the size of the unit The General Counsel also argues that nine additional employees signed dual cards thereby further reducing the number of valid authorization cards in Local 6's possession at the time of recognition We also find it unneces- sary to rule on these exceptions 6 See fns 59 and 61 of the judge's decision 7 See Unit Train Coal Sales, 234 NLRB 1265 fn 3 (1978) ing agreement executed by the Respondent and Local 6.8 In his recommended remedy, the judge provided interest to be computed in the manner provided in Florida Steel Corp., 231 NLRB 651 (1977). We shall modify the judge's recommended remedy to re- quire that interest be computed in the manner pro- vided in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Human Development Association, Brooklyn, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). "(b) Reimburse all present and former unit em- ployees, except those who joined or signed authori- zation cards for Local 6 prior to the execution of the collective-bargaining agreement on June 24, 1981, for moneys paid by or withheld from them on or after June 24, 1981, for initiation fees, dues, or other obligations of membership in Local 6, with interest." 2. Substitute the attached notice marked "Appen- dix B" for that of the administrative law judge. 8 The Respondent contends that a dues reimbursement Order is unwar- ranted because "[a] contract provision for automatic dues check-off, standing alone, does not constitute sufficient coercion under the law to justify such a drastic remedy," citing Intalco Aluminum Corp V NLRB, 417 F 2d 36, 39-42 (9th Cir 1969), as support We reject this contention The coercion is inferred from the union -security clause in the unlawful agreement and its requirement of union membership as a term and condi- tion of employment, rather than from the existence of a checkoff provi- sion Furthermore, the Ninth Circuit itself has recognized the appropri- ateness of the dues reimbursement remedy subsequent to its Intalco deci- sion In NLRB v Jan Power, Inc, 421 F 2d 1058 at 1064 (9th Cir 1970), the court, in upholding the dues reimbursement remedy provided by the Board's order, specifically stated that it was reasonable "for the Board to infer that those employees who joined the union after the execution of the agreement could well have been motivated by the over-riding com- pulsion of that agreement and its union-security clause [citations omit- ted] " In Sheraton-Kauai Corp v NLRB, 429 F 2d 1352, 1357-1358 (9th Cir 1970), the same court enforced a dues reimbursement remedy when employees joined the union after being informed they were obligated to do so under the union-security agreement entered into unlawfully by the contracting parties In that decision , the court, at fn 6, observed that its Intalco and Jan Power decisions could only be reconciled by restricting Intalco to the specific facts of that case In any event, we do not sub- scribe to the view expressed by the Ninth Circuit in its Intalco decision, and note further that that view is not representative of the views of other circuit courts See, e g, Longshoremen Local 1814 (Jackson Engineering) v NLRB, 735 F 2d 1384, 1404-1405 (D C Cir 1984), NLRB v Hi-Temp, Inc, 503 F 2d 583, 586-587 (7th Cir 1974), NLRB P Raymond Buick, per cunam, 445 F 2d 644, 645 (2d Cir 1971) 1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B 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 contribute support to Local 6 or to any other labor organization of the employees. WE WILL NOT recognize Local 6 as the repre- sentative of any employees for the purpose of deal- ing concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, unless and until the labor or- ganization shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among the employees. WE WILL NOT give effect to the collective-bar- gaining agreement dated June 24, 1981, between us and Local 6, or to any extension, renewal, or modi- fication, provided, that nothing in this Decision and Order shall require us to vary or abandon any wage, hour, seniority, or other substantive feature of relations with employees established in the per- formance of that agreement. 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 withdraw and withhold all recognition from Local 6 as the exclusive bargaining represent- ative of employees for the purpose of dealing con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until that labor organiza- tion shall have demonstrated its exclusive majority representative status pursuant to a Board-conduct- ed election among the employees, and shall have been certified by the Board. WE WILL reimburse all present and former unit employees, except those who joined or signed au- thorization cards for Local 6 prior to the execution of the collective-bargaining agreement on June 24, 1981, for all moneys paid by or withheld from them on or after June 24, 1981, for initiation fees, dues, or other obligations of membership in Local 6, with interest. HUMAN DEVELOPMENT ASSOCIATION Meredith A. Fisher, Esq., for the General Counsel. Carolyn H. Henneman, Esq. (Scoppetta & Seif/), for the Respondent. Sipser, Weinstock, Harper, Dorn, Leibowitz, Esqs., for the Charging Party. William Perry, President, and Saul Jakubowitz, Esq., for the Party to the Contract. DECISION STATEMENT OF THE CASE ARTHUR A . HERMAN, Administrative Law Judge. This proceeding under Section 10(b) of the National Labor Relations Act, as tried before me pursuant to due notice on November 28, 1983 , February 14-17, 21, 22, March 19-23, 26, and May 1 , 2, and 5, 1984, in Brook- lyn, New York, and New York, New York. District 1199, National Union of Hospital and Health Care Employees , R.W.D.S.U., AFL-CIO (District 1199), filed its initial unfair labor practice charge on December 14, 1981,1 and an amended charge on January 6, 1982. These charges culminated in the issuance of a complaint and notice of hearing on February 3, 1982. The complaint alleges that Human Development Asso- ciation (the Respondent) violated Section 8(a)(1), (2), and (3) of the Act , by recognizing Local 6, International Federation of Health Professionals, International Long- shoremen's Association, AFL-CIO (Local 6), at a time when Local 6 did not represent an uncoerced majority of employees in an appropriate unit and , thereafter, by executing and enforcing a collective -bargaining agree- ment with Local 6 which contains a union-security clause and a dues-checkoff provision Respondent's duly filed answer denied the commission of any unfair labor practices. On the entire record , including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel, Respondent, and Local 6, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent admits that it is a not-for-profit New York corporation engaged in the business of providing home care attendant services to Medicaid recipients pursuant to a contract between it and the City of New York, De- partment of Social Studies of the Human Resources Ad- ministration. Respondent further admits that during the past year it has derived gross revenues in excess of $500,000 from the City of New York in exchange for providing home attendant services, and that during the same period it purchased goods and materials valued in ' All dates herein refer to the year 1981 unless otherwise indicated HUMAN DEVELOPMENT ASSN 1231 excess of $5000 from enterprises located in the State of New York which enterprises received goods and materi- als directly from States other than New York State. Although Respondent meets the Board's monetary standards for assertion of jurisdiction, it does not admit in its answer, the conclusionary allegation, i.e., that it is engaged in commerce within the meaning of Section 2(2),2 (6), and (7) of the Act. In addition, Local 6, the party to the contract, disputes the Board's jurisdiction in this proceeding, alleging that the City of New York, an employer exempt from the Act, is a joint employer with Respondent, and possesses significant control over Re- spondent's labor relations decisions. Testimony regarding this issue was elicited from Rabbi Gruenwald, Respondent's director; William Perry, Local 6's president; and, Robert Shick, Director of the Bureau of Home Care Contract Services for the Human Re- sources Administration (HRA) of the City of New York.3 Respondent, an independent private corporation, is one of approximately 70 vendor agencies which the City contracts with to provide personal care services to eligi- ble Medicaid clients.4 The purchase-of-service agreement between HRA and each of these agencies is negotiated on an annual basis for the fiscal period from July to June. The agreement has basic terms and provisions pur- suant to which HRA monitors the operations of the vendor agency (Respondent), and it sets a budget within which Respondent is expected to operate. HRA audits Respondent's books twice a year, and it reviews the re- sumes of the top officials of Respondent.5 In addition, HRA reviews vendor's leases to make sure that the city's liability is limited, and Respondent seeks HRA's approv- al before making large purchases of equipment. Howev- er, the record evidence does not support Local 6's con- tention that Respondent should be exempt from the Board's jurisdiction because it has close ties to an exempt entity, the City of New York. The evidence clearly shows that the city's interest in reviewing certain aspects of Respondent's operation is to protect the city by limit- ing its liability under the purchase-of-service agreement. HRA looks as those items that could possibly affect the cost of the purchase-of-service agreement. But when it comes to negotiating a collective-bargaining agreement, HRA adopts a hands-off policy and leaves the Respond- ent and the other vendor agencies to their own devices 2 Sec 2(2) of the Act reads The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision there- of, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an em- ployer), or anyone acting in the capacity of officer or agent of such labor organization 8 In its brief, Respondent, after hearing the testimony of Shick, now takes the position that New York City is not a co-employer with Re- spondent 4 R Exh 26 Eligibility to receive Respondent's services is determined by HRA 5 Respondent's administration is vested in a director and deputy direc- tor who are selected by the executive director and board of directors of Respondent's parent organization, Opportunity Development Association The latter is also an independent private, nonprofit organization, not cre- ated by the city of New York, nor is it a department of the City. in dealing with the labor organization who represents the home attendants. After negotiations between the vendor and the union are completed, and a collective-bargaining agreement executed, then a copy of the agreement is for- warded to HRA. There is no prior review by HRA. HRA will look at the economic terms of the agreement for its impact on the city relating to its reimbursement rate as stated in the purchase-of-service agreements. If those economic terms exceed the reimbursement rate, HRA will notify the vendor that the city will not exceed its commitment and will not reimburse the vendor beyond its commitment. There is nothing in the pur- chase-of-service agreement between HRA and the vendor that prohibits Respondent from committing itself to a collective-bargaining agreement that exceeds HRA's commitment, but Respondent does so at its own risk. 6 At no time does HRA get involved in the terms and condi- tions of employment of home attendants employed by vendors, nor does it negotiate with unions on their behalf. HRA does not discipline those employees, nor does it get involved in disputes between Medicaid clients and home attendants. In National Transportation Service,' the Board conclud- ed that it would no longer utilize the so-called "intimate connection" test, but would instead determine whether the employer itself meets the definition of "employer" in Section 2(2) of the Act and, if so, determine whether the employer has sufficient control over the employment conditions of its employees to enable it to bargain with a labor organization as their representative. Once it is de- termined that the employer can engage in meaningful collective bargaining with representatives of its employ- ees, jurisdiction will be established. And, in ANKH Serv- ices,8 a case very similar to the instant case, the Board, citing National Transportation Service, supra, concludes "that the Employer has substantial, if not total, control over the wages, hours, and other terms and conditions of employment of its in-home service workers, and that the Employer is thus able effectively to engage in meaning- ful bargaining over these matters with a labor organiza- tion representing them. We shall therefore assert jurisdic- tion over the Employer." Applying the current Board law, therefore, to the facts in the instant case, I conclude that because the Respond- ent meets the mandatory standards for assertion of juris- diction, and because the Respondent has control over the wages, hours, and other terms and conditions of employ- ment of its home attendants so that it can bargain effec- tively with Local 6, Respondent is not a joint employer with the City of New York and the Board should assert its jurisdiction over Respondent, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 8 In fact, the city attempts to aid their vendors prior to their entering into negotiations with the unions , by presenting them with facts and fig- ures so as to give the vendors an idea of how much more money will be available to them for the coming year so that the vendors could negotiate intelligently with Unions See Party to the Contract Exh. 27. 7 240 NLRB 565 8 243 NLRB 478 1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, Respondent admits, and I find that District 1199 and Local 6 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Since 1980 Respondent has been engaged in providing home care services to eligible Medicaid clients pursuant to a purchase-of-service agreement between Respondent and HRA. Respondent performs these services by hiring home attendants who are dispatched to the clients' homes. These home attendants are referred to as Tier 1 employees in the purchase-of-service agreement, distin- guishing them from Respondent's administrative employ- ees who are combined in a Tier 2 grouping. Two of Re- spondent's employees in Tier 2, Marlene Paynter and Mona Wilson, are classified as personnel specialists.9 When Respondent would obtain an eligible Medicaid client from HRA, either Paynter or Wilson would visit the client with a registered nurse to determine the needs and requirements of the client. If a home attendant was present, they would interview the home attendant; if not, a home attendant that best suited the client's needs would be assigned by them to the client. Paynter and Wilson handled clients' complaints about home attend- ants, and would attempt to work out the problem; if they were unsuccessful, they had authority to change the home attendant. Personnel specialists take care of the home attendants' timesheets, and they arrange their vaca- tion and sick leave. Home attendants are paid on an hourly basis. They work from 4 to 24 hours a day,' ° and from 2 to 7 days a week.' 1 All of these arrangements are handled by personnel specialists. Rabbi Gruenwald credibly testified that in addition to the regularly employed home attendants who are as- signed on a permanent basis to particular clients, Re- spondent also calls on "hold-on" home attendants from time to time. These hold-ons are home attendants who do not wish to work on a permanent basis or there are no openings for them on a permanent basis. They there- fore work on a substitute basis, filling in when a home attendant is sick, or takes a day off, or goes on vacation. In Rabbi Gruenwald's own words, "A hold-on employee is someone that works for a short period of time and leaves Or works for a person, one day here, one day there for a different client. And they would still be hold- ons." In distinguishing between regular home attendants and hold-ons, Rabbi Gruenwald stated, "We do not have regular employees and ten different names. We have reg- ular employees, working full time for the same client, and we have, as I said in the beginning of the hearing, hold-ons, for client 'a' today for client `b' next week, and/or an hour here, an hour there." Although it is un- disputed that the appropriate unit in this proceeding con- sists of all home attendants employed by Respondent, 9 Both testified in this proceeding as witnesses for the General Counsel 10 A 24-hour home attendant is called a sleep-in I1 Some 7-day clients have two home attendants-one for 5 days, and one for 2 days Respondent did not include hold-ons in the count when it recognized Local 6.12 B. Recognition of Local 6 Turning now to Respondent's recognition of Local 6, the following sequence of events is uncontroverted. For several months prior to June 1981, Local 6 conducted a mail campaign attempting to get Respondent's home at- tendants to sign authorization cards designating Local 6 to represent them. On June 11, a card count was held on Respondent's premises. Those present included Steve Jarema, a business agent for Local 6, Rabbi Gruenwald, and Dr. Arnold Wolf, Respondent's director,13 and their attorney Lichtschein Bornstein, an attorney, conducted the card count by checking Local 6's cards against Re- spondent's personnel and payroll records. After the count, Bornstein concluded that Local 6 did not have enough cards to constitute a majority, and so Jarema gathered up the cards and left. On June 22, a second card count took place on Re- spondent's premises. Perry and Jarema represented Local 6, Rabbi Gruenwald, Dr. Wolf, and Lichtschein repre- sented Respondent, and Samuel Krieger, Esq. conducted the card count. Krieger credibly testified as to who was present and how he went about checking the cards, of- fered by Local 6, against timesheets and other docu- ments, offered by Respondent. He stated that the parties stipulated that there were 181 employees in the unit, and that when Perry presented him with 91 acceptable cards,14 he announced that Local 6 represented a majori- ty of the home attendants in the unit.15 On that same day Krieger reduced his findings to writing by a letter to all concerned parties, verifying his count, and adding the fact that Local 6 "had in its possession 46 additional sig- nature cards which were not submitted for verification." (Party to the Contract Exh. 40.) Based on Krieger's find- ings, Respondent recognized Local 6 as the collective- bargaining representative of its home attendants, and 2 days later, June 24, executed a collective-bargaining agreement with Local 6, containing a union-security clause and a dues-deduction authorization clause, cover- ing the terms and conditions of employment of its home attendants. Counsel for the General Counsel presented evidence through Herbert Binger, a vice president and area direc- tor for District 1199, relating to the latter's organizing efforts concerning Respondent's home attendants. She elicited testimony to the effect that commencing in or about March 1981, District 1199 mounted a mail cam- paign seeking to get Respondent's home attendants to 1 z The unit status of the hold-ons will be discussed infra 13 Dr Wolf left Respondent's employ in July 1982, and Rabbi Gruen- wald replaced him as Respondent's director 14 Some of the cards offered by Perry were duplicates and therefore not counted 15 According to Joan Kaltschmidt, a secretary employed by Local 6 and the one who accumulated and counted the authorization cards as they came in the mail, Local 6 received over 147 cards She concedes that some were duplicates, and in that event, she stapled them together with the latest date on top In any event the General Counsel introduced into evidence Local 6's cards as G C Exh 15 and stipulated that they numbered 134 HUMAN DEVELOPMENT ASSN 1233 sign authorization cards; that in late May or early June to August, District 1199 began a personal solicitation outside Respondent's premises; that District 1199 held two meetings with Respondent's home attendants in Feb- ruary-March and April, at which cards were distributed to the home attendants; that despite its campaign efforts, District 1199, the Charging Party, never filed an NLRB petition to represent Respondent's home attendants; and that after repeated attempts during late May and June to reach Respondent's director, District 1199 on June 29, sent a letter to Respondent requesting recognition.16 However, inasmuch as recognition had been extended to Local 6 on June 22, and a contract executed on June 24, Respondent ignored District 1199's letter. And so, the issue was joined with District 1199 filing the unfair labor practice in the instant proceeding, and the complaint issued by the General Counsel alleging a violation of Section 8(a)(2) of the Act, in that Respond- ent granted recognition to Local 6 at a time when either (1) Local 6 did not have a sufficient number of valid cards to constitute a majority of the home attendants in the unit on June 22, or (2) the existence of dual cards held by District 1199 nullified the Local 6 cards suffi- ciently to reduce its valid cards to below the necessary majority. C. The Size of the Unit as of June 22 As stated above, the card count on which recognition of Local 6 was based, occurred on June 22. Among the documents used by Krieger to verify the count was the Respondent's latest payroll register prior to June 22, which was dated June 18,17 and which contained the names of 181 home attendants. However, the June 18 payroll register listed only those home attendants who were employed for the period from May 30 through June 12. And so, a look at prior and later payroll regis- ters and quarterly ledger cards becomes necessary in order to add those home attendants who were hired be- tween June 13 and 22, and delete those home attendants who no longer were employed on June 22,' a if any. In addition, a determination regarding the unit status of hold-ons must be made, if any appear on those payrolls. Rabbi Gruenwald testified that eight regularly em- ployed home attendants" should be included in the unit 18 Binger claims that District 1199 had about 50 authorization cards by June 29 17 G C Exh 5 18 Extensive testimony regarding the status of certain home attendants was elicited from Rabbi Gruenwald on behalf of Respondent, and Mar- lene Paynter on behalf of the General Counsel My observation of the witnesses as they responded to questions, leads me to place more reliance on the cold record provided by the payroll registers and ledger cards and I shall use them extensively 18 Victoria Bodden, Elsie Duperval, Eppie Edelstein, Mary Hopkin, Rosetta Liburd, Violet Maxwell, Patricia Paul, and Juliette Rose. The Rabbi inadvertently referred to Pauline Paul, but the record shows that Paulina Paul appears on the June 18 payroll register as well as on several other payrolls that follow immediately thereafter, whereas Patricia Paul's name appears for the first time on the July 1 payroll register and contin- ues on payrolls thereafter Because Paulina's status is not in dispute and she is a regular employee, I will substitute Patricia for Paulina and in- clude Patricia Paul in the unit as well despite the fact that their names do not appear on the June 18 payroll register. Rabbi Gruenwald contended that he considered a home attendant to be a regular per- manent employee who appeared consistently on the pay- rolls working for the same client and who received at least three consecutive paychecks. The reasons for the absence on these employees from the June 18 payroll could be. vacation, sick leave, or the client could be hos- pitalized. And, according to Rabbi Gruenwald, these eight employees' names do appear consistently on the payroll except for the June 18 payroll. The General Counsel does not dispute the inclusion of these employ- ees, except for Bodden. Bodden's name does not appear on the payroll registers for May 21, June 18, July 1, 16, or 30, and August 13. The June 4 payroll register shows an accumulated amount covering a period form April 13 to May 29, which leads me to believe that this check was for vacation pay. And so, I find that Bodden was no longer employed by Respondent on June 22, and is, therefore, excluded from the unit. However, I shall in- clude the other seven by consent of the parties and the unit count now stands at 188. In addition, Rabbi Gruen- wald, contrary to the General Counsel, would exclude Andrea Inniss and Hilda Sears from the unit claiming them to be hold-ons. I have checked the records20 and, although I disagree with Rabbi Gruenwald regarding Sears' hold-on status, I find that Sears ceased to work for Respondent on June 18, and was not an employee on June 22. Therefore, she shall be excluded from the unit. As for Inniss, the records reflect sporadic earnings total- ing a gross amount of $80.40 during the second quarter of the year and her name does not appear on either the July 1, 16, or 30 payroll register. Thus, at most she was a hold-on employee on June 22. In deciding to exclude Inniss, I have come to the conclusion to exclude all hold- on employees. In the case of on-call employees, the Board has taken the view that such employees may or may not be considered regular part-time employees, de- pending on the specific nature of their work. Where they are employed sporadically with no established pattern of regular continuing employment, they are excluded from the unit 21 From the evidence presented I liken the hold- ons to on-call employees, and I find that Respondent's hold-on employees meet that criteria and, therefore, I shall exclude all hold-on employees from the unit.22 By excluding Sears, Inniss and Mathew from the unit, the count stands at 185 employees in the unit on June 22. Another employee in dispute is Melicia Wright. My review of the records indicates that Wright 's name ap- pears on the payroll register for June 18,23 but does not 20 Payroll registers received in evidence included those for May 21, June 4 and 18, July 1, 16, and 30, and August 13 Also received in evi- dence was the quarterly ledger card dated March 26, June 29, and Sep- tember 24 21 giggly Wiggly El Dorado Co, 154 NLRB 445, 451 (1965) 22 A case in point is that of Gladys Mathew Although her name ap- pears on the June 18 and July 1 payroll registers, it is not repeated either before or after those dates, and her earnings show a much lower figure than regular home attendants, suggesting that Mathew was a hold-on for a very brief period of time I find that she does not share a community of interest with the regular home attendants sufficient to warrant her being part of the unit and therefore she shall be excluded from the unit 23 This payroll register covers the period from May 30 to June 12 1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD appear thereafter on any payroll register in evidence for 1981. I conclude, therefore that Wright was not em- ployed by Respondent on June 22, and her name shall be excluded from the unit.24 Thus, the unit count is now 184. Four other new employees, i.e., employees whose names do not appear on the June 18 payroll register, but who are conceded by Respondent to have been em- ployed on June 22 as regular employees, namely, Joyce Carnegie, Ana Fernandes, Sara Grunzweig, and Maria Reyes, and whom the General Counsel wants included in the unit, shall be included. The unit count now rises to 188, and as far as Respondent is concerned, that con- cludes the number of eligible unit employees on June 22. However, the General Counsel contends that there are other employees who should be added to the list, and I now direct my attention to them. Taking them alphabeti- cally from the General Counsel's Appendix A attached to her brief, I make the following findings of fact25 Marcella Aaron worked for Respondent during the first and third quarters of 1981, but not in the crucial second quarter. Her name does not appear on the payroll registers of May 21, June 4 and 18, or July 1 or 16. It appears on the payroll registers for July 30 and August 13, during which time Aaron serviced three clients. Under the circumstances, I do not find her a regular per- manent employee, and I shall not include her in the unit. Lurrine Brown, an employee hired on June 22, is ad- mittedly a hold-on, and for the reasons stated above, she shall not be included in the unit. According to Paynter, Coral Brownfield worked on June 20 and 21 for Respondent.26 Except for her name appearing on the payroll of July 1, covering those 2 days, it does not appear on the payroll registers of May 21, June 4 and 18, July 16 and 30, or August 13. I find, therefore, that Brownfield was hired for one job only for 2 days, with no expectancy of continued employment and in fact, was not recalled for at least 3 months there- after, if ever. She shall be excluded from the unit. The records show that Ernestina Lumpris started working for Respondent on June 22. She worked a full week in that pay period, and 2 full weeks in each of the next two pay periods all for the same client. By Rabbi Gruenwald's own standard, this employee meets the cri- teria of a regular permanent employee, and I shall in- clude her in the unit as of June 22. This brings the total complement of the unit at this point to 189. Lorraine Menake is admittedly a hold-on employee. She worked a total of 39 hours through the first three quarters of 1981 (all in July), and did not work on June 22. She shall be excluded from the unit. Christine Nelson, according to Paynter, was a hold-on employee on June 22, having worked for three clients during the payroll period ending June 26. The payroll registers for July 16 and 30 and August 13 show her working full time for just one client. However, because the crucial consideration is her status on June 22, and it 24 It should be noted that Mathew and Wright were card signers for Local 6 Therefore, I shall reduce Local 6's count by two 25 Only those employees on the list who have not been previously con- sidered will be discussed 26 Those 2 days were Saturday and Sunday is clear that she was a hold-on on that date, I shall ex- clude her from the unit. Gloria Ogilvie worked a total of 69 hours through the first three quarters of 1981, 36 of which she worked in pay period ending July 24. She did not work on June 22 nor during that pay period. Her name does not appear on the payroll registers for May 21, June 4 and 18, or July 1 and 16. At most, 'Ogilvie was a hold-on, and she shall be excluded from the unit. The General Counsel concedes that Loncitta Roach was a hold-on employee, having worked only 8 hours as shown on the payroll register for July 16, and only 48 hours in each of the following two payroll registers. She did not work for Respondent on June 22, nor did she work from May to July. She shall be excluded from the unit. Lucy Sant started working for Respondent on June 22, and appears on the July 1 payroll register as having worked 2 full weeks. The payroll registers for July 16 and 30, however, show Sant working only 1 week in each period, and the August 13 payroll register does not show Sant at all. Under the circumstances, and applying the principles enunciated above, I find that Sant was only a temporary employee who should not be included in the unit. Cecilia Sobers was a hold-on employee who worked a total of 4 hours some time during the week ending June 19. Her name does not appear on any payroll register either before that date or after. She shall be excluded from the unit. Chaim Steinberg worked on June 22, a Monday, and 4' hours each day that week, but not during the next week of that payroll period. In the next payroll period shown in the payroll register of July 16, Steinberg again worked only 1 week for a total of 20 hours. The payroll register for July 30 shows Steinberg working 4 hours each day for both weeks. His name does not appear on the August 13 payroll register. I consider Steinberg to be a hold-on employee, and I will exclude him from the unit. Eileen Stroude's name appears on the July 1 payroll register as having worked 1 full week in that pay period, including June 22, and 2 full weeks on the July 16 pay- roll register. Her name does not appear either before or after these entries. She shall be excluded from the unit as a hold-on employee. The record shows that Zhanna Vitlina worked for Re- spondent 25 hours a week from the week ending July 3 through the week ending August 7. However, there is no record showing Vitlina working on June 22, despite the fact that the record says she was hired on June 8. Be- cause the records show that her earliest working date was June 27,27 she was not employed on June 22 and, therefore, shall be excluded from the unit. The General Counsel admits that Zelpha (Maude) Warden, is a hold-on employee, and the records show that she worked sporadically at that. The July 1 payroll register shows Warden working 2 full weeks for one client, then there is a break in employment. Warden did not work again until the payroll period covered by the 21 Respondent's workweek begins on Saturday HUMAN DEVELOPMENT ASSN. payroll register for August 13, which shows her working another full 2 weeks but for another client. I find her to be a hold-on employee and she shall be excluded from the unit. Bernice Williams started working for Respondent some time during the week ending June 19 and worked continuously for the same client (Caifa) for 6 consecutive weeks to July 24. The payroll registers for July 1, 16, and 30 reflect these facts. The payroll register for August 13 shows Williams working 2 full weeks for an- other client (Finnegan), and the quarterly ledger card, dated September 24, shows Williams working into Sep- tember. Inasmuch as Williams was employed by Re- spondent on June 22, and worked full time consistently thereafter for at least 3 months, I find her to be a regular employee as of June 22, and she shall be included in the unit. This brings the unit count to 190 as of June 22. Two employees, Bernadette Connell and Marilyn Jer- nck whose names appear on the June 18 payroll register and who were included in the count by Krieger, were the subject of conflicting testimony, i.e., the General Counsel contends they are hold-on employees, whereas Respondent classifies them as regular employees. How- ever, both would include them in the unit. I agree for a different reason. The records show that Connell worked for a client (Bongiovanni) for 40 hours during the week ending May 1; that she then went to work for a client (Bloomfield) on a part-time basis, beginning during the week ending May 22 for 22 hours, the week ending June 5 for 22 hours, the week ending June 12 for 22 hours, the week ending June 19 for 11 hours, the week ending July 3 for 16 hours, the week ending July 10 for 8 hours, the week ending July 17 for 16 hours, and the week ending August 7 for 16 hours. Jerrick was equally as consistent an employee. The record shows the following: Week Ending Client No. of Hrs. 5/8 Bongiovanni 40 5/15 Bloomfield 77 5/22 Bongiovanni 40 5/29 Laplaza 60 5/29 Bloomfield 22 6/5 Laplaca 24 6/5 Teitlebaum 12 6/12 Teitlebaum 84 6/19 Gazzetta 60 6/26 Ambrosio 77 7/3 Ambrosio 77 7/10 Ambrosio 77 7/17 Ambrosio 77 7/24 Ambrosio 77 7/31 Solomon 32 8/7 Solomon 32 While neither meets the standard set down by Rabbi Gruenwald, supra, the consistency of their employment, whether for one client or several or the length of hours performed, is scarcely the pattern of a temporary or casual employee. The Board has held that part-time em- 1235 ployees are included in a unit whenever they perform work on a regular basis for a sufficient period of time to demonstrate that they have a substantial community of interest with full-time employees. Such part-time employ- ees are considered regular part-time employees, and I find Connell and Jerrick to fit that description.28 Be- cause they have already been included in the unit, the count stands at 190. D. Local 6's Status The first issue in the complaint raises the question of Local 6's majority on June 22, and whether proper rec- ognition was extended to Local 6 by Respondent. The General Counsel placed into evidence29 copies of the authorization cards obtained by Local 6., They to- taled 138 cards, of which 4 were duplicates, leaving a balance of 134 cards. Perry testified that this represented all the cards that Local 6 obtained from Respondent's home attendants. By comparing the names on the cards with the names of the 190 employees in the unit on June 22, taking into consideration the two employees (Mathew and Wright) who signed Local 6 cards but whom I have excluded from the unit,30 I find that Local 6 had 100 valid cards, giving it a majority of the 190 em- ployees in the unit. (See App. A attached hereto.)$1 Under the circumstances, I find that recognition by Re- spondent of Local 6 on June 22 was granted in good faith on the basis of a previously demonstrated showing of majority. E. The Existence of Dual Cards and Their Effect of Local 6's Majority Status Having concluded that Local 6 possessed valid author- ization cards from a majority of the unit employees on June 22, I am now confronted with the General Coun- sel's second argument for voiding a portion of these cards. The General Counsel contends that a sufficient number of Local 6 card signers also signed cards for Dis- trict 1199 prior to recognition, and therefore those dual card signers should not be counted,32 When an employ- ee signs an authorization card for each of two unions, it is settled Board law that, absent evidence of the signer's intent, neither of the authorizations is valid because it is impossible to determine which union the employee would designate as the exclusive bargaining representa- tive.33 In support of its contention, the General Counsel 28 Farmers Insurance Group, 143 NLRB 240, 244, 245 (1963) 29 G.C. Exhs. 15(A)-(EH). so Supra, fn. 24. Although Bodden signed a card for Local 6 and I have excluded her from the unit, the count is not affected because she does not appear on the payroll register for June 18 and I have-not added her name to the count. 31 Respondent, while admitting that Mathew should be excluded, con- tends that there were 101 valid cards However , on examination, Re- spondent will note that I have excluded Wright, for reasons given supra 32 See Hi Temp Inc., 203 NLRB 753 (1973), Intalco Aluminum Corp, 169 NLRB 1034 (1968); Allied Supermarkets, 169 NLRB 927 Respond- ent's argument to the contrary and its reliance on Wavecrest Home for Adults, 217 NLRB 227, is misplaced See Board's in 2 therein 33 United McGill Corp, 235 NLRB 564, 565 1236, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD attached an Appendix C to its brief, listing 15 home at- tendants whom it claims signed dual cards. 34 Mathew's name can be immediately discounted be- cause it is not included in the list of 190 eligible employ- ees. Four other employees, Benjamin, Boucher, 35 John- son, and Stephen did not testify in this proceeding. The General Counsel relied on the testimony and memory of Paynter, an alleged supervisor, in trying to establish the fact that all four had signed cards and given them to Paynter to hold. Paynter stated that she had received about 20-30 District 1199 cards from employees and kept them in a basket on her desk; that sometime after the June 22 count, Respondent moved its offices from up- stairs to downstairs on the same premises, and Paynter threw the District 1199 cards out; that, however, she re- members some of the names on the cards. At this point, from memory, she recited four names including Johnson and Stephen .36 She then was shown a payroll list of names by the General Counsel, and she rattled off ap- proximately 20 names including Boucher. Of the four names under discussion only, Johnson's card is in the record, and that is dated September 18 a date long after the count.37 I find that Paynter's testimony was uncon- vincing as was her manner in testifying, and I discredit her with regard to the alleged cards. Therefore, I find that dual cards for Benjamin, Johnson and Stephen did not exist prior to June 22.38 Four other employees, Decasseres, Marcel, Michael, and Wilson did testify, Decasseres contends that she re- members signing a card for Local 6 and a card for Dis- trict 1199 about the same time sometime in May.39 How- ever, the only card in evidence from District 1199 is dated July 24;40 Decasseres states that she had signed two cards for District 1199. Marcel also claims to have signed two cards for District 1199 but only one card is in evidence and it is dated August 1.4 1 Michael claims to have signed three cards for District 1199-two in April or May and one in January 1983. However, none are in evidence. Wilson claims, to have signed two cards for Distnct 1199, but only one card is in evidence, and it is dated July 18 42 Having before me only the cold, hard evidence of three cards all dated after June 22, and the testimony of a fourth witness who claims to have signed three cards, none of which appears in the record, I find the testimony of these witnesses contradictory, confus- ing, and lacking trustworthiness. I, therefore, discredit 34 The General Counsel introduced into evidence, through Binger, 72 District 1199 authorization cards allegedly obtained from Respondent's employees See G C Exh 36. However, a review of those cards indicates an assortment of reasons why the only cards relied on by the General Counsel are contained in App C, and I shall confine my discussion to the App C list 35 Boucher's name appears on the June 18 payroll register under her first name, Jocelyne I have listed her name correctly on App A 36 Nowhere in her direct testimony did she ever mention the name Benjamin 31 G C Exh 36 NN 38 Although I find Paynter to be a supervisor within the meaning of their testimony as to when they signed cards that are not available to me, and I do not accept the General Coun- sel's argument that valid dual cards had been signed by these four employees. The six remaining employees on General Counsel's Appendix C: Cruz, Hyacinth, Lefkowitz, Rankin, Rich- ardson, and Spence all testified in this proceeding. Juanita Cruz credibly testified that she started to work for Respondent in December 1980, and that she is still working there; that she was handed a District 1199 au- thorization card by Joan Johnson on Respondent's prem- ises; that her daughter filled the card out; and that she, Juanita Cruz, signed the card on March 27,43 and mailed it.44 Cruz also testified that she signed a card for Local 6 on May 8 after her daughter filled it out.45 Cruz stated that she was not coerced into signing either card. I find that Cruz signed dual cards, both prior to June 22. Patricia Hyacinth credibly testified that she is present- ly employed by Respondent and that she signed a card for Local 6 on May 17,46 and one for District 1199 on June 19;47 that she put each card in an envelope on the day she signed it and mailed them to the respective unions. On this testimony, I hold that Hyacinth signed a District 1199 card on June 19 and mailed it the same day, and signed a Local 6 card earlier. She, therefore, signed dual cards prior to June 22. Ana Mercedes Lefkowitz, a Spanish-speaking employ- ee, presently employed by Respondent, credibly testified that she was handed a District 1199 card outside Re- spondent's premises on Friday, a payday, before noon, by a lady who explained to her in Spanish what the card said, and that she, Lefkowitz, signed and dated it that day, June 19, and handed it back to the lady.48 Lefkowitz then identified a Local 6 card as bearing her signature but she, admitted that she could not remember the surrounding details of her signing it.49 I examined the signatures on both cards and found them to be the same. Therefore, I find that Lefkowitz signed a card for District 1199 on June 19, and a card for Local 6 on June 1, and I find that Lefkowitz signed dual cards before June 22. Betty Rankin credibly testified that she worked for Respondent from March to July; that a lady working for District 1199 handed her a card; that she filled it out, signed and dated it June 5, at home;50 but that she does not remember what she did with it thereafter. As for the Local 6 card, Rankin states that she received it in the mail; that her brother filled out the information on the card; that she signed and dated it May 19, and mailed it back to Local 6.51 I find, therefore, that Rankin signed dual cards before June 22. 43 G C Exh 11 44 Both District 1199 and Local 6 use self-addressed business reply cards (postage to be paid by addressee) for their authorization cards Sec 2(11) of the Act, based on the duties she performs as enumerated 45 G C Exh 15 AJ supra, I do not believe that such a resolution bears any weight in the final 45 G C Exh 15 BP analysis of this case 47 G C Exh 13 3a In fact, the Local 6 card is dated May 7 48 G C Exh 20 40GC Exh 26 49 G C Exh 15 Cl, dated June 1 41 G C Exh 28 50GC Exh 10 41 G C Exh 24 51 G C Exh 15 DU HUMAN DEVELOPMENT ASSN. 1237 Lynn Richardson credibly testified that she signed two cards for District 1199 and one card for Local 6; that she received the first card from District 1199 in April; she signed and dated it and mailed it; that she signed Local 6's card in May;52 that she filled out, signed, and dated a second Distnct 1199 card in June, and handed it to Paynter.53 I find that Richardson signed dual cards prior to June 22, one for Local 6 on May 25 and one for Dis- trict 1199 on June 8. Jennifer Spence credibly testified that while she worked for Respondent she received a card in the mail from Local 6; she filled it out, signed and dated it, and mailed it.54 Later on, she received a card in the mail from District 1199. Because she had heard from a friend that District 1199 was a better union, she filled out that card, signed and dated it and mailed it.55 I find from my examination of the cards that Spence signed the Local 6 card on May 6 and the District 1199 card on June 7. I hold, therefore, that Spence signed dual cards prior to June 22. Despite the efforts of Respondent and Local 6 to dis- credit the testimony of these six employees, I find their testimony plausible on its face and totally convincing and believable. And, it should be noted, that no evidence was produced by either Respondent or Local 6 to refute the testimony of these witnesses. Neither conjecture nor sur- mise can override their sworn, spoken, words and their identification of the cards that they signed. And, except for Spence who said she favored District 1199, none of the other five employees expressed any preference for either union. On that basis I find that these six employees signed dual cards thereby affecting the majority status of Local 6. Of the 100 employees in the appropriate unit who signed cards for Local 6, 6 also signed cards for District 1199 before Local 6 was recognized as the ex- clusive bargaining agent of Respondent's home attend- ants. Under established Board law these six cannot be counted towards Local 6's majority.56 Thus, Local 6 is left with 94 valid cards. It necessarily follows that Local 6 did not represent a majority of the 190 employees in the appropriate unit at the time they were recognized, i.e., June 22, 1981, and Local 6 was not, therefore, enti- tled to be the exclusive bargaining agent. By granting recognition under the circumstances, Respondent violat- ed Section 8(a)(1) and (2) of the Act, and this is equally as true without regard to the Respondent's good faith.57 F The Collective-Bargaining Agreement Executed on June 24 and its Effect on the Unit Employees It is undisputed that on June 24, 2 days after Respond- ent extended recognition to Local 6, Respondent and Local 6 executed a collective -bargaining agreement con- taining a union -security clause and a dues-deduction au- thorization clause .S11 Rabbi Gruenwald testified that pur- suant to that agreement, Respondent began deducting dues from the wages of home attendants in September 1981.59 Inasmuch as Respondent's recognition of Local 6 on June 22 was invalid, Respondent's execution and en- forcement of its collective-bargaining agreement with Local 6 was equally invalid. Under the circumstances, I find that Respondent has violated Section 8(a)(1), (2), and (3) of the Act, and I shall order Respondent to reim- burse all present and former unit employees, except those who joined or signed authorization cards for Local 6 prior to the execution of the collective-bargaining agree- ment on June 24, 1981,60 for moneys paid by or with- held from them on or after June 24, 1981, for initiation fees, dues, or other obligations of membership in Local 6,61 with interest thereon computed in the manner de- scribed below in the remedy section. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 6 and District 1199 are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing Local 6 as the exclusive bargaining representative of its home attendants, at a time when Local 6 did not represent a valid majority of said em- ployees, Respondent violated Section 8(a)(2) and (1) of the Act. 4. By entering into a collective-bargaining agreement covering Respondent's home attendants, which contains a union-security clause, at a time when Local 6 did not represent a valid majority of the home attendants, and by enforcing the union-security clause, Respondent has vio- lated Section 8(a)(1), (2), and (3) of the Act. 5. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY As Respondent has been found to have engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. I shall recommend that (1) Respondent withdraw and withhold all recognition from Local 6 as exclusive bar- gaining representative of its home attendants, unless and until Local 6 has been certified by the Board as the ex- clusive collective-bargaining representative of home at- tendants; (2) Respondent cease giving effect to the June 24, 1981 collective-bargaining agreement it executed with Local 6, or to any extension, renewal, or modification thereof; nothing herein, however, shall authorize or re- 52 GC Exh 15 DX s8GC Exh 25 58 G C Exh 4 54 G C Exh 15 Z 58 Hold-ons, employees working less than 20 hours, probationary em- 55 G C Exh 12 ployees, and a priest, were exceptions to this practice 56 Intalco Aluminum Corp, 169 NLRB 1034 (1968), enfd 417 F 2d 36 (9th Cir 1969) 51 Ladies Garment Workers (Bernhard Altmann Corp) v NLRB, 366 U S 731 (1961) 60 This exception does not include the six home attendants whose Local 6 cards were invalidated by their signing dual authorization cards for Distnct 1199 81 Unit Train Coal Sales, 234 NLRB 1265 (1978) 1238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quire the withdrawal or elimination of any wage increase or other benefits or terms and conditions of employment which may have been established pursuant to the per- formance of that agreement; and (3) Respondent shall re- imburse all present and former unit employees, except those who joined or signed authorization cards for Local 6 prior to June 24, 1981, for moneys paid by or withheld from them on or after June 24, 1981, for initiation fees, dues, or other obligations of membership in Local 6,62 with interest thereon computed in the manner provided in Florida Steel Corp., 231 NLRB 651 (1977) (see general- ly Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed63 ORDER The Respondent, Human Development Association, Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Recognizing or dealing with Local 6, International Federation of Health Professionals , International Long- shoremen's Association, AFL-CIO, as the bargaining representative of its employees in the appropriate unit unless and until Local 6 shall have been certified by the Board as the exclusive representative of such employees. The appropriate unit consists of: All home attendant employees employed by Re- spondent excluding all RNs, guards, clerical work- ers, personnel specialists and secretaries , guards and supervisors as defined in the Act. (b) Assisting Local 6 in any manner to become the col- lective-bargaining representative of its employees in the aforesaid appropriate unit (c) Performing or giving effect to its contract of June 24, 1981, with Local 6, or to any modification, extension, supplement, or renewal thereof; to any dues-checkoff cards executed pursuant thereto; or to any other con- tract, agreement , or understanding entered into with Local 6 or its successor, relating to grievances, labor dis- putes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until said Union, or its successor, shall have been certi- fied by the National Labor Relations Board; provided, however, that nothing in this Order shall authorize or re- quire the withdrawal or elimination of any wage increase of other benefits, terms, and conditions of employment which may have been established pursuant to the per- formance of said contract. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 62 This is exclusive of the employees who signed dual authorization cards See fn 59, supra 63 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withdraw and withhold all recognition from Local 6 as the exclusive bargaining representative of its em- ployees for the purpose of dealing with Respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employ- ment, unless and until the labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among Respond- ent's employees, and shall have been certified by the Board. (b) Reimburse all present and former unit employees, except those who joined or signed authorization cards for Local 6 prior to June 24, 1981, for moneys paid by or withheld from them on or after June 24, 1981, for ini- tiation fees, dues, or other obligations of membership in Local 6, with interest thereon computed in the manner set forth above in the remedy section. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Brooklyn, New York place of business copies of the attached notice marked "Appendix B."64 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 64 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 LIST OF ELIGIBLE UNIT HOME ATTENDANTS EMPLOYED BY HUMAN DEVELOPMENT ASSOCIATION ON JUNE 22, 1981 Alfred J . Krashonsky* Alfred J.M. Kuchmirowska* Altman Laguerre* Alvarez Lazarre* Amato Lefkowitz* Andrew Lerouge* Arrington * Lewis, A Ashby Lewis, C. Bailey Liburd* Barrow* Barthelemy Benjamin* Berman Boucher* Brodsky* Cabrera Calo* Campbelle Carnegie Castillo Champegne Clebert Coats Cohens* Connell* Craig Cruz* Cukierman* Cyprien Damato Danielewski* Decasseres* Delgaudio Deutsch* Diaz, C. Diaz, L. Dolce Donofrio* Dorleans* Dufont Duperval* Eastman Edelstein Edwards Etienne* Ewart* Faustin* Feldman* Fernandez Forbes* Fortune Fowler Francois Gayzler Gonzales Gonzalez Goode Goroberts Grant, A. Grant, B. Greenberg* Greenfield Griffith* Grossman Grunzweig Hanley* Harper Hayes Hendy* Hernandez HUMAN DEVELOPMENT ASSN. Lopez Louisaiare* Lumpris Lyublinsky* MacDonado Mann* Manning Marcel* Martinez Maxwell* McCarthy McDonald* McLennan Merzel Mesquita Michael* Minto Moontack* Moore Nakhmanovich* Nieves* Ovitsh* Panya Patrick Paul, Patricia Paul, Paulina* Pereira* Phillips Pierre Pointdjour Porter* Portnoy* Potapousky* Profis* Proto* Ramsaran Rankin* Rapaport Reyes Richardson* Roitman* Roldon* Romero Ronnie* Rose* Rosenberg* Ross Rouse Sauage Scheindel* Scott* Segal Shames Shindman* Silberman* Sinciha* Smith Solomon* Soto Spence, J.* Spence, S.* Herold Herskowitz* Hill* Hills Hirsch* Hopkin* Hughes Hyacinth* Jackson* Jeffrey Jerrick Johnson, A.* Johnson, J.* Jolibois* Jones Karabas Katz* Kedsler* Khaves Khavkin Kingston* Klaynberg* Klipper Kogan* Spira* Stephen* Stotland* Strachan* Sylvestre Tarulli* Toilia* Thelot* Theus* Thomas* Toe* Tsivina* Vasquez Vernell* Vitiello* Voskoboynik White* Williams Wilson* Wint* Yakir* Young Zakharyan Zeitser 1239 * Denotes names of employees who signed valid au- thorization cards for Local 6. Meredith A. Fisher, Esq., for the General Counsel. Carolyn H. Henneman, Esq. (Scoppetta & Seiff), for the Respondent. Sipser, Weinstock, Harper, Dorn, Leibowitz, Esqs., for the Charging Party. William Perry, President, for the Party to the Contract. Jonathan Walters, Esq. (Kirschner, Walters & Willig), for the Party to the Contract. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. On 4 April 1985, I issued my decision in this proceeding, in which, inter aha, I asserted jurisdiction over Respondent. Thereafter, on 31 July 1986, the Board issued an order remanding this proceeding to me for further consider- ation of the jurisdiction issue, including if necessary, a re- opening of the record, consistent with the Board's deci- sions issued on 24 June 1986, in Res-Care, Inc., 280 NLRB 670, and in Long Stretch Youth Homes, 250 NLRB 678. On 12 December 1986, I advised the parties to this proceeding that after having re-read the record and the cases cited by the Board, I found the record suf- ficiently adequate to permit me to respond to the Board's remand without the necessity of reopening the record, and requested the parties to file briefs to aid me in my deliberations. Thereafter, counsel for the Charging Party submitted a letter in support of its position that the Board should assert jurisdiction over Respondent; the City of New York submitted a brief as amicus curiae to this proceeding, suggesting that the Board assert jurisdic- 1240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion over Respondent;' and Local 6 submitted a position statement and reply brief urging me not to assert juris- diction in this proceeding. On the entire record, I make the following FINDINGS OF FACT2 Local 6 raised the jurisdiction issue at the hearing al- leging that the City of New York, an employer exempt under Section 2(2) of the Act, exercises sufficient control over Respondent's labor relations so as to prevent Re- spondent from engaging in meaningful collective bar- gaining with Local 6, thereby extending the 2(2) exemp- tion to Respondent and removing it from the Board's ju- risdiction. The issue was fully litigated through the testi- mony elicited from Rabbi Gruenwald, Respondent's di- rector, William Perry, Local 6's president, and Robert Schick, director of the Bureau of Home Care Contract Services for The Human Resources Administration (HRA), a municipal agency of the City of New York. The record in the instant case shows that all hiring and firing of home attendants, the collective-bargaining unit of employees involved, is done by the Respondent without any supervision or guidance by HRA, the exempt entity. Home attendants' qualifications are pre- scribed by New York Department of Social Services and carried out by the City of New York.3 The Employer must determine for itself whether an employee is quali- fied and it does not need nor get the approval of the exempt entity. Moreover, if the employer needs addition- al home attendants because of an increase in clients, the Employer does not need the exempt entity's approval to hire them. Schick testified, without contradiction, that there are certain funding issues that are addressed in the purchase- of-service agreement that keep the city's liability to the Respondent within certain limits. He readily admitted that because the purchase-of-service agreement provides for reimbursement of expenses to Respondent by the city, the latter was naturally concerned with the amounts of money expended by Respondent. And, he stated that any collective-bargaining agreement arrived at between Respondent and Local 6 would have an economic effect on the monetary terms of the purchase-of-service agree- ment. However, Gruenwald testified that after he had completed negotiations with Local 6, at which the city was not present, he did not seek authorization from the city to enter into a final agreement, and no authorization by the city was required. Gruenwald's sole concern before signing such an agreement was to be certain that there was enough money in the budget portion of the purchase-of-service agreement to pay any negotiated in- creases to employees. i It is the close relationship between the City of New York and Re- spondent that forms the basis for this inquiry 2 The facts stated are in addition to those facts set forth in my prior decision, and together, they comprise the basis for my determination 3 The requirements are (1) Home attendants must be 18 years of age or older (2) They must possess a social security card (3) They must possess a basic fluency in English (4) They must be understanding of people and have a sympathetic atti- tude Schick further stated that additional items that con- cerned the city, and that would have an impact on the cost of the purchase-of-service agreement, included the amount of the lease that Respondent would sign for the premises it occupied, and the rental of computer serv- ices. Gruenwald pointed out that the purchase-of-service agreement limited, by a fixed amount, the money that Respondent could spend for the purchase of a piece of equipment. However, as long as the item's price was below the fixed amount, Respondent could buy as many of the items it wished without the approval of the city. Perry introduced into evidence through Gruenwald, the fiscal year 1984 percent value of sample wage in- creases including fringe benefits for home attendants.4 Gruenwald testified that this document was prepared by the city to aid Respondent, as a guideline in its negotia- tions with Local 6, and that Respondent could not go beyond the guidelines without the consent of the city. Schick readily admitted that the purchase-of-service agreement stated a specific monetary amount, known as the hourly reimbursement rate, which it hoped was not exceeded in a collective-bargaining agreement. In the event it was exceeded, HRA would inform the Respond- ent, or any other vendor, what the city's commitment was limited to in the purchase-of-service agreement, and advise the vendor that the city could not reimburse it for the overage. Gruenwald contends that the city could veto any collective-bargaining agreement negotiated be- tween Respondent and Local 6 that exceeds the guide- lines, but Schick disputes that. On cross-examination by the General Counsel, Gruen- wald admitted that the guideline figure used in Party to Contract's Exhibit 27 could be split up in any manner agreed to by Respondent and Local 6, and that the guidelines do not discuss any noneconomic terms and conditions of employment. Perry introduced into evidence, through Gruenwald, a series of letters and memoranda sent by either HRA or HDA to the other entity, aimed at showing the connec- tion between the two. These consisted of letters by HRA approving the purchase of equipment,5 permission given by HRA to all vendor agencies to increase salaries of nurses,6 approval by HRA to HDA for the latter to shift funds in its line budget so as to hire a field security person,7 and HRA's approval of the resume of a person for the position of assistant director for field operations at HDA.8 The chief concern of Local 6 centered on the fact that because HRA assumed the entire responsibility of pro- viding health benefits to all home attendants through Blue Cross/Blue Shield, it deprived Local 6 of the right to discuss health benefits with Respondent during the course of their collective-bargaining negotiations. In this vein, Perry introduced into evidence the City of New York's projected costs for the home attendants' health in- surance program,9 and Local 6's desire to negotiate the 4 Party to Contract Exh 27 5 Party to Contract Exhs 16 and 23 6 Party to Contract Exh 18 7 Party to Contract Exh 17 8 Party to Contract Exh 25. 9 Party to Contract Exh 21 HUMAN DEVELOPMENT ASSN. medical and hospital benefits with the City.' ° The city rejected Perry's request." Schick stated that the city held an informational meet- ing with the vendor coordinating Council and union rep- resentatives, to advise them regarding the cost of the city's health insurance program, but not to discuss whether the unions should take over the program. Schick countered the testimony of Gruenwald and Perry by explaining the city's interest in the negotiations held between Respondent and Local 6. He stated that the city looks at the collective-bargaining agreement to see just what economic impact it will have on the pur- chase-of-service agreement that the city has with the Re- spondent. Schick admitted to having a conversation with Perry regarding two issues. He said Perry called him to find out how much of an increase there would be in the hourly reimbursable rate allowed by the city to Re- spondent in the purchase-of-service agreement, so as to give Perry an idea what he could bargain for in his ne- gotiations with Respondent. Schick says he made it clear to Perry that that issue was strictly between Local 6 and HDA, and HRA had no role in the negotiations. In the same conversation, Perry and Schick also discussed the status of some retroactive pay that was due Respondent's home attendants. Schick stated that there was no require- ment that copies of communications between HDA and Local 6 be sent to HRA. Schick pointed out that even though the hourly reimbursement rate increase could not exceed a fixed percentage, no limitation was placed by the city on the Respondent as to how it was to be allo- cated. Schick further stated that HRA plays no role in disciplining Respondent's employees, nor in discharging, promoting, scheduling working hours, establishing size of work force, assigning home attendants, establishing work rules, or setting up either a seniority or grievance system. On cross-examination by Perry, Schick reiterated the fact that the purchase-of-service agreement between HRA and HDA defines the responsibilities of both, and that by signing the agreement they agreed to live within its boundaries. Thus, the agreement provides a dollars- per-hour reimbursement rate that HRA pays to HDA for the hours of service home attendants perform for clients. If there is money left over in the budget, and HDA did not exceed the limit set, HDA could give the employees more money up to the limit; however, if HDA exceeds the limit, HRA will not reimburse HDA. This is not to say that HDA sets the employees' wages. Wages are ne- gotiable, within limits, between HDA and Local 6. Schick further stated that HDA could sign a lease with- out showing it to HRA, but HRA will only reimburse HDA for the amount specified in the budget, which is part of the purchase-of-service agreement. In addition, Schick pointed out that the purchase-of-service agree- ment provided that HRA has the right to purchase health care insurance for HDA's employees, which it did, but if there is a problem, HDA must contact the health care carrier directly. 10 Party to Contract Exh 26 11 G C Exh 45 1241 Once a year, HRA monitors the quality of service being performed by the home attendants. If it is deter- mined that the service is not up to standard, HRA noti- fies HDA to correct it. If, on reexamination, the situation is not corrected, HRA will not do anything in the par- ticular case; but HRA will use it in an overall evaluation of HDA, and might not renew the purchase-of-service agreement. Analysis and Conclusions Based on the Board law at the time I issued my deci- sion in this proceeding, as stated in National Transporta- tion Service,' 2 I decided to assert jurisdiction over Re- spondent. In Res-Care, Inc., 280 NLRB 670 (1980), the Board reaffirmed the basic twofold test it had enunciated in National Transportation Service,13 but it went a step further. The Board stated that from now on it would ex- amine not only the control over essential terms and con- ditions retained by the employer, but also the scope and degree of control exercised by the exempt entity over the employer's labor relations, in order to determine whether the employer is capable of engaging in meaning- ful collective bargaining. And, in Res-Care, the Board concluded that because the exempt entity retained the ul- timate discretion for setting wage and benefits levels, thus precluding the employer from engaging in a mean- ingful collective bargaining, it would not assert jurisdic- tion over the employer. The Board found that although the employer initially set the wage and benefit levels for each job classification in its operating budget, the budget required approval by the exempt entity and, once ap- proved, it became the basis for the contract price. More- over, the employer was required to obtain approval from the exempt entity of the wage ranges to be paid to the employer's employees, including a maximum for each classification and the substantive terms of several em- ployee benefits. Also, the labor contract specifically pro- vided that any proposed changes in the approved wage ranges or fringe benefit plans had to be submitted to the exempt entity for approval, along with any proposed changes in the staff manning table, labor grade schedule, or salary schedule. On the very same day that the Board issued its deci- sion in Res-Care, it also-issued its decision in Long Stretch Youth Home, 280 NLRB 678 (1986), in which it dis- cussed the very same issue, and in which it asserted juris- diction over the employer. In Long Stretch, the Board found that the exempt entity did not exercise ultimate discretion over wage and benefit levels. Although the employer does submit to the exempt entity, with its ini- tial license application, minimum-maximum salary ranges, as well as other personnel policies it may have, the exempt entity does not maintain strict standards for the content of those policies and the employer largely deter- 12 240 NLRB 565 12 The twofold test is (a) Is the employer an employer within the meaning of Section 2(2) of the Act? (b) Does the employer have sufficient control over the employ- ment conditions of its employees to enable it to bargain with a union? 1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mines for itself what those salaries and other policies will be. The Board stated that the exempt entity's salary ranges were merely guidelines, as was its policy of sug- gesting a percentage limit of the employer's budget for salaries. Also, the employer did not have to obtain prior approval from the exempt entity for changes in personnel policy. Another distinction drawn by the Board, as com- pared to Res-Care, is that in Long Stretch the wage and benefit levels approved by the exempt entity were not di- rectly tied to funding . Even though Long Stretch submit- ted a proposed operating budget for review and approval each year of the exempt entity, the proposed salary ranges and benefit levels were not submitted with the budget, but with the initial license application and at re- evaluation . Also, in Res-Care, the total salaries and bene- fits were one component of the employer 's operating costs, and the total of the operating cost plus a fixed fee became the contract price upon approval of the employ- er's bid. Not so in Long Stretch. The Board found that the exempt entity had little or no control over the setting of salaries, the content of the benefits provided, or the content of other personnel policies, as long as Long Stretch satisfied minimum standards and qualifications. In addition, even though the exempt entity did exercise some control over the employer's hiring and firing, and did require that employees meet certain minimum qualifi- cations for certain positions , the Board found these to be minimal limitations on Long Stretch's authority and did not significantly limit its ability to engage in meaningful bargaining. In the instant case, it is clear that HDA is not a Feder- al agency and thus is not exempt under Section 2(2) of the Act. It also is clear that HDA employs employees as defined in Section 2(3) of the Act. My only inquiry, therefore, goes to the question : Should I decline to assert jurisdiction because of the extent to which the City of New York, an entity exempt from the Board's jurisdic- tion, controls the employment conditions of HDA's em- ployees? Is the relationship such as to prevent HDA from engaging in meaningful collective bargaining with Local 6? Having examined the record and the current Board law as expressed in Res-Care and Long Stretch, I find that, unlike the employer in Res-Care, HDA does retain sufficient control over economic terms and conditions of employment to allow it to engage in meaningful collec- tive bargaining. The creditable testimony of Schick es- tablished the fact that while the City of New York moni- tored HDA's performance in providing services under the purchase-of-service agreement , such monitoring con- sists largely of operational controls and is not so restric- tive as to preclude HDA from engaging in meaningful collective bargaining. As stated by Schick, HRA only seeks to advise HDA and not to order it, and HRA cannot prevent HDA from signing a collective -bargain- ing agreement with Local 6. Moreover, HDA determines for itself the size and composition of its work force; it hires, promotes, and disciplines its employees without in- terference by the exempt entity; it is free to bargain with Local 6 as to the nonmonetary terms and conditions of employment of the home attendants ; and, within limits, it bargains freely with Local 6 with regard to wages and other economic fringe benefits. As stated by the Board at footnote 14 of its Long Stretch decision, "Courts have held that employers do not lack the freedom to bargain effectively over wages and benefits simply because they are subject to budgetary limitations because of their de- pendance on public funds. In the absence of specific limits on employee compensation expenditures, such as were present in Res-Care, the fact that the government entity places an effective ceiling on such expenditures by limiting the private employer's total budget is not the type of control over labor relations that would cause us to decline to assert jurisdiction. [Citations omitted.]" In only one area, of HDA's employment relations does HRA have exclusive control, and that is health insur- ance . The City of New York contracts, on behalf of all home attendants, with a nonprofit private institution to provide them with health care services. This matter was the subject of discussion among the vendors, unions, and HRA, and no evidence was introduced to show that either the unions or the vendors were dissatisfied with the arrangement, or that some other arrangement would be more cost efficient . Under the circumstances , I do not find that the degree of control exercised by the exempt entity in this one area is sufficient to interfere with Re- spondent's ability to bargain in a meaningful manner with Local 6 regarding all other terms and conditions of employment of Respondent's home attendants. In the instant case, I find that the general overall review exercised by HRA over HDA does not sufficient- ly deprive HDA of the ultimate control over essential terms and conditions of employment to preclude it from engaging in meaningful collective bargaining . I find that the actions of HRA do not rise to a level that impinges on either the day-to-day operations of HDA or on HDA's ultimate control of labor relations . Accordingly, I conclude that it will effectuate the purposes and poli- cies of the Act to assert jurisdiction. As a result of the foregoing supplemental findings of fact, and in light of the Board's decisions in Res-Care and Long Stretch, I reaffirm my original conclusion that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Board should assert jurisdiction over Respond- ent.