Petoskey Geriatric Village, Inc.

800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Petoskey Geriatric Village, Inc. and United Steel- workers of America, AFL-CIO-CLC. Case 7- CA-26039 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN , CRACRAFT, AND DEVANEY On a charge filed by the United Steelworkers of America, AFL-CIO-CLC (the Union) on July 16, 1986, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on August 27, 1986, against the Respondent, Petoskey Geriatric Village, Inc., alleging that it violated Section 8(a)(5) and (1) of the National Labor Relations Act. The Re- spondent filed a timely answer admitting in part and denying in part the allegations of the com- plaint. On April 27, 1988, the Respondent, the Union, and counsel for the General Counsel filed with the Board a stipulation of facts and transmittal of formal papers. On July 13, 1988, the parties filed a motion to amend the stipulation of facts .' The par- ties agreed that the stipulation of facts, as amended, and attached formal papers constitute the entire record in this case. The parties waived a hearing and issuance of a decision by an administrative law judge and stated their desire to submit the case di- rectly to the Board for findings of fact, conclusions of law, and Decision and Order. On June 27, 1988, the Board issued an order granting the motion, ap- proving the stipulation, and transferring the pro- ceeding to the Board . Thereafter, the Respondent and the General Counsel filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record in this proceeding, the Board makes the following FINDINGS OF FACT I. JURISDICTION rectly from sources outside the State of Michigan. Accordingly, in agreement with the stipulation of the parties, we find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts On December 1, 1978, the Union was certified as the exclusive representative of a unit of employees2 of Beverly Enterprises d/b/a Beverly Manor Con- valescent Centers (Beverly) that operated a nursing and convalescent center at 1500 Spring Street, Pe- toskey, Michigan. Following the Union's certifica- tion, Beverly refused to bargain . The Union filed an unfair labor practice charge and , on June 4, 1979, the Board found that Beverly had violated Section 8(a)(5) and (1) and ordered Beverly to rec- ognize and bargain in good faith with the Union. Beverly Manor Convalescent Centers, 242 NLRB 751 (1979). The Board Order provided, inter alia, that the certification year would begin "on the date [Beverly] commences to bargain in good faith with the Union as the recognized bargaining representa- tive in the appropriate unit." Id. at 753. After the Sixth Circuit Court of Appeals denied enforcement of the Board's Order and remanded the case for further consideration of the appropriateness of the certified unit,3 the Board reaffirmed its unit deter- mination and bargaining order on September 30, 1982. 264 NLRB 966. In 1984, the Sixth Circuit Court of Appeals again denied enforcement of the Board's Order and directed that the case be re- manded to the Regional Director for further con- sideration of the unit issue. 727 F.2d 591. On April 5, 1984, the Regional Director issued a report find- ing that the unit, as certified by the Board, was ap- propriate. On April 1 , 1985, while Beverly's exceptions to the Regional Director's report were pending before the Board, the Respondent leased Beverly's nursing Petoskey Geriatric Village, Inc., a Michigan cor- poration, at all material times has been engaged in the operation of a nursing and convalescent home at 1500 Spring Street, Petoskey, Michigan. During calendar year 1985, a representative period , the Re- spondent had gross revenues in excess of $500,000. During the same period, the Respondent purchased and caused to be shipped to its Petoskey facility goods and materials valued in excess of $5000 di- r The motion is granted 2 The parties stipulated, and the Board previously found, that the fol- lowing unit is appropriate for the purpose of collective bargaining within the meaning of Sec. 9(b) of the Act: All full-time and regular part-time food service employees, mainte. nance employees, laundry employees, housekeeping employees, Li- censed Practical Nurses, nurses aides and orderlies , physical therapy aide and ward clerk and central supply employee employed by the Employer at its 1500 Spring Street , Petoskey, Michigan facility, but excluding confidential employees, professional employees, office cler- ical employees, guards and supervisors as defined in the Act. Beverly Manor Convalescent Centers, supra, enf. denied and remanded 661 F.2d 1095 (6th Cir 1981); 264 NLRB 966 (1982), enf denied and remand- ed 727 F.2d 591 (6th Cir. 1984); 275 NLRB 943 (1985). 8 Beverly Manor Convalescent Centers v NLRB, 661 F.2d 1095 (6th Cir. 1981) 295 NLRB No. 80 PETOSKEY GERIATRIC VILLAGE home at 1500 Spring Street in contemplation of a future purchase. The Respondent assumed control of the nursing home and , without hiatus, took over patient care at the facility and since April 1, 1985, has operated substantially the same business as Bev- erly operated before that date . The Respondent hired a majority of Beverly's employees in the unit certified by the Board on December 1, 1978. A ma- jority of the Respondent's initial work force had been employed by Beverly in the bargaining unit prior to that date . The Respondent additionally hired some of Beverly's supervisors. On May 22, 1985 , the Union requested that the Respondent commence bargaining. On June 28, 1985, the Board issued a Second Supplemental De- cision and Order directed to Beverly and its "offi- cers, agents, successors and assigns," reaffirming the appropriateness of the December 1, 1978 certi- fied unit and its 1979 Order requiring, inter alia, that the certification year commence upon good- faith bargaining. 275 NLRB 943. On April 30, 1986, the Union again requested bargaining. On June 25, 1986, the Respondent rejected the Union's bargaining requests. Prior to April 1 , 1985, a majority of the bargain- ing unit employees were union members, union meetings were held among unit employees, and union officers and stewards were elected. After April 1 , 1985, the Union did not sign up any mem- bers from among the bargaining unit employees, hold union meetings among unit employees, collect dues, or select officers or stewards from the bar- gaining unit employees. On April 30, 1987, the Respondent employed ap- proximately 87 bargaining unit employees, 27 of whom were employed by Beverly on March 30, 1985. Only 8 of the 27 were in the bargaining unit as of September 9, 1978. B. Contentions of the Parties The General Counsel contends that the Respond- ent is a successor to Beverly within the meaning of NLRB v. Burns International Detective Agency, 406 U.S. 272 (1972). To support this position, the Gen- eral Counsel relies on the facts that the Respondent hired a majority of Beverly's unit employees, em- ployed some of the same supervisors, and assumed, without hiatus or change in patients, the operation of 1500 Spring Street. Further, a majority of the Respondent's original work complement had been employed in the Beverly unit. According to the General Counsel, the fact that the Respondent leased the Petoskey facility in contemplation of a future purchase, rather than purchasing it outright, does not undercut a successorship finding. IMS 801 Mfg. Co., 278 NLRB 538 (1986), enfd. 813 F.2d 113 (6th Cir. 1987). The General Counsel further argues that the Union enjoys an irrebuttable presumption of major- ity status. In its original 1979 unfair labor practice determination, the Board ruled, in accordance with Mar-Jac Poultry Co., 136 NLRB 785 (1962), that the certification year would commence when Bev- erly began to bargain in good faith . The General Counsel thus asserts that because no bargaining has occurred, the certification year has not expired. The General Counsel contends that the irrebuttable presumption of majority status applies to successor employers, like the Respondent, who are requested to bargain during the certification year . IMS Mfg. Co., supra. Alternatively, the General Counsel argues that even if the irrebuttable presumption of majority status does not apply to the Respondent , there is, at a minimum, a rebuttable presumption of majority support that the Respondent failed to rebut. Fall River Dyeing Corp. v. NLRB, 476 U.S. 1139 ( 1987). Thus, the General Counsel contends that the Re- spondent did not establish, based on objective con- siderations, that it had a good-faith doubt that the Union continued to represent a majority of unit employees. The Respondent's reliance on unit em- ployee turnover between September 9, 1978, and April 30, 1987, and March 30, 1985, and April 30, 1987, is misplaced according to the General Coun- sel because that turnover postdates its 1985 and 1986 refusal to bargain with the Union .4 Addition- ally, the General Counsel argues that there is no evidence that the Respondent's refusal to bargain with the Union was based on the facts that, since April 1, 1985, the Union has not signed up unit em- ployees as members, held meetings , or selected offi- cers or stewards from the unit . Had the Respond- ent relied on these factors, the General Counsel submits that they are nonetheless insufficient to support a good-faith doubt of majority support. Physicians Community Hospital, 231 NLRB 512, 514 (1977). Finally, the General Counsel asserts that al- though the Union's May 22, 1985 bargaining demand was more than 6 months prior to the charges being filed, nonetheless the complaint is not barred under Section 10(b) of the Act because the Respondent failed to timely raise this affirma- tive defense. Federal Management Co., 264 NLRB 107 (1982). The Respondent contends that, assuming ar- guendo, it is a Burns successor to Beverly, any pre- 4 The General Counsel argues that the decline in union membership after the Respondent's unlawful refusals to bargain is the foreseeable con- sequence of its Sec. 8(a)(5) conduct. NLRB Y. Fall River Dyeing Corp., 775 F 2d 425 (1st Cir. 1985), affd. sub nom. 476 U.S. 1139 (1987). 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sumption of continued majority status is conclusive for only 1 year following Board certification. Thereafter, the Respondent contends that it lawful- ly could refuse to bargain if it had a good-faith doubt that the Union represented a majority of em- ployees. The Respondent asserts that it had a good- faith doubt when it took over the Petoskey facility based on the fact that, after April 1, 1985, the Union did not sign up any unit employees as mem- bers, hold union meetings, or select stewards or of- ficers from among the unit employees . In addition, by April 30, 1987, only 27 of 87 employees in the bargaining unit had been employed as of April 1, 1985, and only 8 of those 27 were employed in the unit at the time of certification.5 The Respondent further argues that it should not be required to recognize and bargain with the Union because there is no basis for assuming that the Union now enjoys majority support, 10 years after the Board certification. In support of its posi- tion, the Respondent relies on St. Regis Paper Co., 285 NLRB 293 (1987), in which, on remand from the First Circuit Court of Appeals, a Board majori- ty agreed with the court that bargaining was no longer warranted . The Board majority relied on the 4-year delay since the Board's determination that mechanics had accreted into the existing unit, the closing of affected plant locations, the transfer of unit employees, and the fact that none of the current mechanics was a union member or had checked off union dues . The Respondent also relies on Impact Industries v. NLRB, 847 F.2d 379 (7th Cir. 1988), in which the Seventh Circuit denied en- forcement of the Board's Gissel6 bargaining order on the basis that 7 years had elapsed between the representation election and the Board 's bargaining order and because the Board had failed to consider changed circumstances, including employee turn- over and new management. C. Discussion For the following reasons, we find that the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. Initially, we agree with the General Counsel that the Respondent is a successor employer to Beverly. The Board's traditional test for successorship status, affirmed by the Supreme Court in NLRB v. Burns Security Services, 406 U.S. 272 (1972), and s In support of its "good-faith doubt" argument, the Respondent relies on Golden State Habilitation Center Y. NLRB, 566 F.2d 77 (9th Cir. 1977), denying enf. 224 NLRB 1618 (1976); Bellwood General Hospital v. NLRB, 627 F.2d 98 (7th Cir 1980), denying enf. 243 NLRB 88 (1979 ); and W & W Steel Ca Y. NLRB, 599 F.2d 934 (10th Cir. 1979), denying enf. 232 NLRB 74 (1977) 6 NLRB v. Gissel Packing Co., 395 U.S. 575 ( 1969). most recently in Fall River Dyeing Corp. v. NLRB, 476 U.S. 1139 (1987), is whether there is continuity in the employing enterprise. We find that the Re- spondent admitted facts sufficient to establish sub- stantial continuity in this case . Thus, the Respond- ent admits that it (1) assumed operations of 1500 Spring Street on April 1, 1985, (2) continued, with- out hiatus, to operate the facility as a nursing and convalescent center, (3) took over care of the same patients, (4) hired a majority of former Beverly em- ployees in the unit certified by the Board, and (5) hired some of the same supervisors. Moreover, the Respondent stipulated that a majority of its em- ployees employed on or about April 1, 1985, were employed in the Beverly bargaining unit. Accord- ingly, we find that the Respondent is a successor to Beverly which, on request, was obligated to recog- nize and bargain with the Union. See New London Convalescent Home, 274 NLRB 1442, 1443 (1985), enfd. sub nom. NLRB v. Eastern Connecticut Health Services, 815 F.2d 517 (2d Cir. 1987); Magnolia Manor Nursing Home, 260 NLRB 377, 381 (1982).' We further find that the Union requested recog- nition and bargaining and that the Respondent re- fused to recognize and bargain with it in May 1985. Thus, on May 22, 1985, the Union wrote the Re- spondent requesting bargaining over unit employ- ees and the parties have stipulated that all times material, as expressed by its June 25, 1986 letter, the Respondent has refused to bargain with the Union." The Respondent argues that, even assuming it is a Burns successor, it lawfully refused the Union's bargaining requests based on its good -faith doubt that the Union represented a majority of unit em- ployees. We reject this argument and instead find that the Union was conclusively presumed to rep- resent the Respondent's unit employees at the time of the Union's 1985 and 1986 bargaining demands. It is well settled that absent unusual circum- stances a union's majority status is conclusively presumed to exist during the initial certification 7 We further find, in agreement with the General Counsel, that the fact that the Respondent leased 1500 Spring Street in anticipation of a future purchase, rather than purchasing it outright, does not negate its succes- sorship status. See generally Sorrento Hotel, 266 NLRB 350 (1983), East Belden Corp., 239 NLRB 776 (1978), enfd. 634 F.2d 635 (9th Cir. 1980). 8 Although this May 1985 bargaining request and refusal occurred more than 6 months before the filing of the unfair labor practice charge, the Respondent did not challenge the refusal -to-bargain allegation under Sec. 10(b) of the Act Sec. 10(b) of the Act provides that- [N]o complaint shall issue based upon any unfair labor practice oc- curring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made... . As the 10(b) statute of limitations is an affirmative defense that is waived if not timely raised, the Respondent is estopped from relying on this de- fense. Christopher Street Corp., 286 NLRB 253 (1987); Federal Manage- ment Co. , supra. PETOSKEY GERIATRIC VILLAGE 803 year. Brooks v. NLRB, 348 U.S. 96 (1954). Where a successor employer takes over during the initial certification year, the conclusive presumption of majority status extends to it. Dynamic Machine, 221 NLRB 1140, 1142 (1975), enfd. 552 F.2d 1195 (7th Cir. 1977); IMS Mfg., 278 NLRB 538, 541-542 (1986), enfd. 813 F.2d 113 (6th Cir. 1987). Al- though the certification year ordinarily dates from the Board's certification, where an employer or its successor refuse all bargaining , the certification year will not commence until good -faith bargaining occurs. See, e.g., Bell & Howell Co., 220 NLRB 881, 883 (1975); NLRB v. Aquabrom , 855 F.2d 1174, 1183-1184 (6th Cir. 1988). To hold otherwise would thwart the purposes of the Act. [I]t is error to refuse to enforce a bargaining order when it is conceded that there has been a Board election, the Union was duly certified, and the Company thereafter refused to bargain in good faith. Requiring still another Board election in such a situation undermines the central purpose of the National Labor Rela- tions Act, since it gives an employer an incen- tive to disregard its duty to bargain in the hope that over a period of time a union will lose its majority status. NLRB v. Patent Trader, 426 F.2d 791, 792 (2d Cir. 1970). Here, Beverly never bargained with the Union following the December 1978 certification. Neither did the Respondent bargain, despite the Board's Second Supplemental Order and the Union's bar- gaining requests . Accordingly, we find that the cer- tification year has not commenced and that the Union is irrebuttably presumed to represent a ma- jority of unit employees. Mar-Jac Poultry, supra. By failing and refusing to bargain with the Union in these circumstances, the Respondent violated Sec- tion 8(a)(5) and (1). Alternatively, even if a rebuttable presumption of union majority status were applicable to the facts of this case, we find that the Respondent vio- lated the Act by refusing the Union's bargaining requests. The Board has held that, following expi- ration of the certification year, the presumption of majority status is rebuttable. The Employer there- after may withdraw recognition when the Union lacks majority status or when the Employer has a good-faith doubt of the Union's continued majority status. For a "good faith doubt" to be valid, it must be based on objective considerations and arise in a context free of unfair labor practices . Pennex Alu- minum Corp., 288 NLRB 439 (1988), and cases there cited. The employer's burden of establishing good-faith doubt is a heavy one. Pennco, Inc., 250 NLRB 716, 716-717 (1980), enfd. 684 F.2d 340 (6th Cir. 1982). The parties have stipulated that prior to the Re- spondent commencing operations at the Petoskey facility, a majority of the unit employees were union members, union meetings were held, and stewards and officers were elected. There is no evi- dence that when the Union demanded bargaining in May 1985 and April 1986 the Union had lost its majority status. Rather, the employee turnover fig- ures on which the Respondent relies for its claim of good-faith doubt date from April 30, 1987, ap- proximately 2 years after its bargaining obligation arose. The Respondent cannot rely on evidence postdating its failure to fulfill its bargaining obliga- tion to justify its conduct. See generally Distileria Serralles, 289 NLRB 51 (1988). Moreover, the Re- spondent's reliance on employee turnover is mis- placed as the Board presumes that new employees support the Union in the same ratio as those they replace. Laystrom Mfg. Co., 151 NLRB 1482, 1484 (1965), enf. denied 359 F.2d 799 (7th Cir. 1966). See also Alexander Linn Hospital Assn., 288 NLRB 103 (1988). The Respondent also incorrectly relies on the fact that, after April 1, 1985, the Union did not sign up new members, hold meetings for unit em- ployees, or select officers or stewards from among the unit. This lack of new membership and employ- ee union activity was a foreseeable consequence of the Respondent's refusal to bargain. NLRB v. Fall River Dyeing Corp., 775 F.2d 425 (1st Cir. 1985), affd. 476 U.S. 1139 (1987). See also NLRB v. Aqua- brom, supra. Moreover, there is no evidence that the Respondent relied on these factors when it re- fused to bargain with the Union. Even had the Re- spondent relied on these facts, they are insufficient to establish a good-faith doubt of the Union's ma- jority status. See, e.g., Physicians Community Hospi- tal, supra.9 Accordingly, we find that, as the Re- spondent failed to substantiate its claim of good- faith doubt, it violated the Act by failing and refus- ing to bargain with the Union. Finally, the cases relied on by the Respondent do not conflict with our 8(a)(5) finding. First, Impact Industries v. NLRB, supra, cited for the principle that a bargaining order is unwarranted where there are changed circumstances and a sub- stantial time lapse between an election and Board 9 "Majority Status" refers to whether a majority of unit employees support union representation , not whether they are union members. Ben- nett Packaging Ca, 285 NLRB 602 (1987). The Board has held that a de- cline in union membership is not a reliable indicator that employees do not support a union Orion Corp., 210 NLRB 633 (1974), enfd. 515 F.2d 81 (7th Cir 1975). Member Devaney finds it unnecessary to pass on this last factor. 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD order, is readily distinguishable as a Gissel bargain- ing case. Thus, although some courts have denied enforcement of the Board's Gissel bargaining orders where there is a substantial lapse between the elec- tion and the Board order, on the theory that the employer's unfair labor practices likely will have dissipated, rendering a fair election possible, the same is not true where the lapse follows Board cer- tification. See, e.g., NLRB v. Western Temporary Services, 821 F.2d 1258, 1270 (7th Cir. 1987); NLRB v. Star Color Plate Service, 847 F.2d 1507, 1509 (2d Cir. 1988). Cf. NLRB v. Koenig Iron Works, 856 F.2d 1 (2d Cir. 1988). Similarly, St. Regis, supra, can be differentiated on the basis that it involved the accretion of em- ployees into an existing bargaining unit beyond the certification year. Further, there were substantial changes in St. Regis' operations between the accre- tion and the Board's bargaining order, including the closing of facilities and the transfer of equip- ment and unit employees. Also, current employees in the accreted job classification had never joined the union or had union dues checked off by St. Regis. Under all of these circumstances, the Board majority 1 ° found that as Most of the changed circumstances in [St. Regis'] operations and in the appropriate unit since the Board's original unit determination which have resulted in the constant erosion and deterioration of the unit have been invol- untary and imposed by factors over which [St. Regis] has had very little imput or control . . . the bargaining unit is no longer appropriate . . . [and] the Board's bargaining order has become moot . . . . [285 NLRB 293, 295 (1987).] Conversely, here, there has not been any sub- stantial change in the nature of the Respondent's operations; further, as noted above, any loss of union membership and support is a foreseeable con- sequence of the Respondent's refusal to recognize and bargain with the Union. Finally, Golden State Habilitation Center v. NLRB, 566 F.2d 77 (9th Cir. 1977), denying enf. 224 NLRB 1618 (1976); Bellwood General Hospital v. NLRB, 627 F.2d 98 (7th Cir. 1980), denying enf. 243 NLRB 88 (1979); and W & W Steel Co. v. NLRB, 599 F.2d 934 (10th Cir. 1979), denying enf. 232 NLRB 74 (1977), are distinguishable as all in- volve refusals to bargain outside the initial certifi- cation year in circumstances in which the courts determined that the employers had reasonable doubts of the unions' continued majority status at the time of withdrawal of recognition. And, unlike here, these cases did not involve employer unfair labor practices which had as a foreseeable conse- quence the loss of union support. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time food service employees, maintenance employees, laundry employees, housekeeping employees, Licensed Practical Nurses, nurses aides and orderlies, physical therapy aide and ward clerk and cen- tral supply employee employed by the Em- ployer at its 1500 Spring Street, Petoskey, Michigan facility; but excluding confidential employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. 4. At all times material, the Union has been the exclusive collective-bargaining representative of the employees in the unit described above. 5. The Respondent is a successor for labor rela- tions purposes to Beverly Enterprises d/b/a Bever- ly Manor Convalescent Centers, in the operation of its business at 1500 Spring Street, Petoskey, Michi- gan. 6. Since about May 22, 1985 , and at all times thereafter, the Respondent has failed and refused to recognize and bargain collectively in good faith with the Union as the exclusive representative of the Respondent's employees in the unit described above, and therefore has engaged in, and is engag- ing in, unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist and, on re- quest, bargain collectively with the Union as the exclusive representative of all employees in the ap- 10 Chairman Stephens dissented. He would have found a bargaining obligation in St. Regis. PETOSKEY GERIATRIC VILLAGE propriate unit. See generally Mar-Jac Poultry Co., 136 NLRB 785 (1962).11 ORDER The National Labor Relations Board orders that the Respondent, Petoskey Geriatric Village, Inc., Petoskey, Michigan, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and, on re- quest, bargain collectively with the United Steel- workers of America, AFL-CIO-CLC as the exclu- sive bargaining representative of its employees in the following unit: All full-time and regular part-time food service employees, maintenance employees, laundry employees, housekeeping employees, Licensed Practical Nurses, nurses aides and orderlies, physical therapy aide and ward clerk and cen- tral supply employee employed by the Em- ployer at its 1500 Spring Street, Petoskey, Michigan facility; but excluding confidential employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Recognize and, on request, bargain in good faith with the Union as the exclusive bargaining representative of its employees in the unit found appropriate respecting rates of pay, hours of work, or other terms and conditions of employment; and, if an agreement is reached , embody it in a written and signed agreement. (b) Post at its Petoskey, Michigan facility copies of the attached notice marked "Appendix." 12 " In his complaint, the General Counsel sought a visitatorial clause, but we find such to be unnecessary in the circumstances of this case. See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 12 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." 805 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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. WE WILL NOT refuse to bargain with the United Steelworkers of America, AFL-CIO-CLC as the exclusive collective-bargaining representative of the following unit of our employees: All full-time and regular part-time food service employees, maintenance employees, laundry employees, housekeeping employees, Licensed Practical Nurses, nurses aides and orderlies, physical therapy aide and ward clerk and cen- tral supply employee employed by the Em- ployer at its 1500 Spring Street, Petoskey, Michigan facility; but excluding confidential employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. 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, bargain in good faith with the Union and, if an understanding is reached, embody it in a written agreement. PETOSKEY GERIATRIC VILLAGE, INC.