Avon Convalescent Center

National Labor Relations Board - Board Decisions

Apr 1, 1974

209 N.L.R.B. 937 (N.L.R.B. 1974)

AVON CONVALESCENT CENTER
Avon Convalescent Center and Service, Hospital,
Nursing Home and Public Employees Union, Local
47, Service Employees International Union,
AFL-CIO and Service Employees International
Union, Local 158(A) AFL-CIO. Case 9-CA-7441
April 1, 1974
SUPPLEMENTAL DECISION AND
ORDER
On October 4, 1973, Administrative Law Judge
Joel Harmatz issued the attached Supplemental
Decision. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs, and Respondent filed an answering brief.
The Board has considered the attached Supple-
mental Decision in light of the exceptions and briefs
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions only to the
extent consistent herewith.
On June 22, 1973, the Board issued its Decision
and Order i reversing the Administrative Law
Judge's oral dismissal from the bench of the entire
complaint.2 The complaint alleges that Respondent
violated Section 8(a)(5) and (1) of the Act by refusing
to bargain collectively in good faith with the
exclusive collective-bargaining representative of cer-
tain of Respondent's employees after that representa-
tive had orally and in writing demanded that
Respondent recognize and bargain with it.
The Administrative Law Judge had granted Res-
pondent's motion to dismiss the complaint on the
ground that "[t]he facts alleged in the complaint
when related to those established do not substantiate
refusal to bargain as to Local 47, the certified
representative." He further stated that he would not
regard anything done by Local 158(A) in the name of
Local 47 as binding on Local 47.
In reversing the Administrative Law Judge's
dismissal of the complaint, the Board stated:
In these circumstances, where the evidence so far
shows that Respondent's refusal to meet with the
Union was not based on any doubt as to the
authority of Singleton or Moore to represent Local
47, Respondent knew Local 47 was the certified
representative, and Moore was the authorized
representative of Local 47. the acknowledged
certified representative of Respondent's employ-
ees, and the complaint alleges in part that Local
1 204 NLRB No 64, Chairman Miller dissenting
2 The Chairman 's confessed confusion in his dissent bungs to mind the
line from Hamlet "The [Chairman ] doth protest too much, methinks."
Hamlet, Prince ofDenmark, act III, scene II
a 204 NLRB No 64, last par. of the Board's Decision
4 Sec. 102 48(b) of the Board's Rules and Regulations , Series 8, as
amended, provides
937
47 was the certified representative, a recognition
demand was made on behalf of Local 47, and the
refusal to bargain was directed at Local 47, we
conclude that, without passing on the merits of
the case, a prima facie case has been established
which requires the Respondent to present coun-
terevidence or take the risk of an adverse finding.
Accordingly, the ruling of the Administrative
Law Judge in granting Respondent's motion to
dismiss was in error insofar as the complaint
alleges that Respondent refused to bargain
collectively with Local 47.4 [Emphasis supplied.]
4 Nothing in this Decision condones the General Counsel's failure to
amend the complaint to reflect the fact that this proceeding only involves
a refusal to bargain with respect to Local 47, the only union that is the
certified representative , nor precludes the General Counsel from
amending the complaint subsequently . However, as our dissenting
colleague notes, "the technicalities of common law pleading need not be
followed" and the Federal Rules of Civil Procedure are to be construed
liberally to do j ustice . No equitable argument can be made that Respondent
did not know that only Local 47 was the certified representative or what
was being asked of it by the numerous requests to bargain Therefore, to
sustain the Administrative Law Judge's action in dismissing the entire
complaint orally from the bench will only penalize the employees by
delaying collective bargaining further. This is scarcely to do justice
[Emphasis supplied.]^
The Board ordered that the record be reopened and
the proceeding remanded for further hearing before
the Administrative Law Judge and for preparation of
a Decision. 4
Notwithstanding the Board's conclusion in this
regard, the Respondent at the remand hearing failed
to rebut the General Counsel's prima facie case of a
refusal to bargain. Rather, it declined to present any
affirmative evidence to show that it was uncertain as
to Ed Moore's authority to represent Local 47 or as
to which union was requesting bargaining. There-
upon, the General Counsel moved to amend the
complaint so as to allege a refusal to bargain
exclusively as to Local 47. The request to amend the
complaint was granted.
Thereafter, the Administrative Law Judge issued
his Supplemental Decision interpreting the Board's
finding of a prima facie case as follows:
I construe the Board's Decision as predicated on
a review of the record in the light most favorable
to the party aggrieved (i.e., the General Counsel)
by my dismissal of the case from the bench. I
view the Board's findings of a prima facie case in
that limited light. For, if the Board had intended
to foreclose me from engaging in a present,
independent consideration of the merits, it seems
Upon the filing of timely and proper exceptions , and any cross-
exceptions or answering briefs, as provided in section 102.46 , the Board
may decide the matter forthwith upon the record , or after oral
argument , or may reopen the record and receive further evidence
before a member of the Board or other Board agent or agency, or may
make other disposition of the case.
209 NLRB No. 143
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, customary administrative and judicial prac-
tice and the need to avoid delays in cases of this
nature, would have dictated that the Board not
remand this proceeding for additional hearing.5
The Administrative Law Judge then went on to
find that Respondent did not violate Section 8(a)(5)
and (1) of the Act by refusing to bargain with Local
47 because no valid request was made upon
Respondent for bargaining with that labor organiza-
tion. He rested this conclusion on his finding, based
primarily on Moore's letters, that Respondent was
never expressly informed that bargaining was being
requested exclusively on behalf of Local 47 since
Moore signed the request to bargain as a representa-
tive of Local 47 and Local 158(A). The Administra-
tive Law Judge thereupon dismissed the complaint in
its entirety.
It is clear from the Administrative Law Judge's
Decision, as quoted above, that he has an erroneous
conception of a prima facie case. Apparently, he
envisions two types of prima facie cases, i.e., the
traditional one, and a more limited one based on a
view of the record in the light most favorable to the
aggrieved party. The latter definition does not exist
in law. Either a party has shown a prima facie case, or
it has not. A prima facie case is:
Such as will suffice until contradicted and
overcome by other evidence. A case which has
proceeded upon sufficient proof to that stage
where it will support [a] finding if evidence to
[the] contrary is disregarded . . . . a prima facie
case, then, is one which is established by
sufficient evidence, and can be overthrown only
by rebutting evidence adduced on the other side.6
Accordingly, contrary to the Administrative Law
Judge, the case remained in the same posture
following the remand hearing that it was in at the
time the Administrative Law Judge dismissed the
case from the bench. We remanded the case to give
the Respondent an additional chance to present
some rebutting evidence. Despite the fact that the
Respondent declined to take advantage of the
opportunity we gave it, the Administrative Law
Judge seized on our action as an invitation to
disregard the Board's basis for remand in the first
place, and to formulate a decision which, in
substance, overrules our finding of a prima facie case.
This we cannot accept.
The Board clearly stated that Moore's letters,
although on Local 158(A)'s stationery and signed by
him as a representative of Local 47 and Local
158(A), constituted a valid request on the part of
Local 47 for bargaining as required by the Act under
all the circumstances. The Board further stated that
Respondent's action in ignoring Moore's letters and
Singleton's phone calls, without affirmatively assert-
ing that it doubted their authority to represent Local
47 or questioning what was being asked of it, shows
that there was no confusion whatsoever on the part
of Respondent as to which labor organization was
making a demand for bargaining on behalf of its
employees, and therefore justifies a bargaining order.
Indeed, although it sent three responses to Moore, in
none of them did Respondent ever raise the issue
that it was uncertain as to which union was
demanding bargaining or what Moore's authority
was. Instead, various supervisors wrote the Union
that they either lacked authority to bargain or that
Respondent's director of operations was out of town.
Therefore, the Administrative Law Judge's statement
that, as a matter of law, no demand for bargaining
was made which is effective to impose a duty on
Respondent to bargain collectively with Local 47
ignores entirely our finding of a prima facie case since
our decision was based on the same documents and
circumstances that he had before him.
The Administrative Law Judge was of course free
to decide, based on his own credibility determina-
tions, whether any of the factual elements in our
finding of a prima facie case were missing, notwith-
standing the fact that the testimony of the General
Counsel's witnesses was uncontradicted. The Admin-
istrative Law Judge has discredited Moore's undis-
puted testimony that he was appointed to act as
business representative for and on behalf of Local 47
in the Cincinnati area and that his actions in this case
were solely on behalf of Local 47. The Administra-
tive Law Judge therefore determined that no demand
was actually made on behalf of Local 47, the
certified bargaining representative.
The Board will normally defer to the factual
credibility resolutions of the Administrative Law
Judge unless the preponderance of all the evidence
convinces us that his resolutions were incorrect.? For
the reasons set forth hereafter, we find that the
evidence preponderates against the Administrative
Law Judge's credibility resolution concerning Moore.
In the first place, we note that the Administrative
Law Judge's determination is not based on demeanor
or any inconsistencies in Moore's testimony, but
rather on his finding based on documents we had
before us that Moore never disclosed to Respondent
5 204 NLRB No 64. Sec attached Supplemental Decision sec 111. A. Products. Inc.. 91 NLRB 544; Local 918, International Brotherhood of
par I Teamsters, Chauffeurs, Warehousemen and Helpers of America (Tale-Lord
6 Black's Law Dictionary, 4th Ed., West Publishing Co. 1951. p. 1353. Manufacturing Company, Inc.), 206 NLRB No 102.
7 Salant & Salant. Incorporated. 92 NLRB 417, 424, Standard Drv Wall
AVON CONVALESCENT CENTER
in his letters that his actions in this case were on
behalf of Local 47, and his further finding that in
fact Moore's true intention was to make Local
158(A) the real party in interest or at least a joint
representative along with Local 47. The Administra-
tive Law Judge's finding that Moore did not
"disclose" that he was acting on behalf of Local 47 is
based on the fact that all five letters demanding
bargaining were on Local 158(A)'s letterhead and
were mailed in Local 158(A)'s envelopes, and that
Moore signed four of these requests to bargain as a
representative of Local 47 and Local 158(A).
Once again, this time under the guise of credibility,
the Administrative Law Judge is in effect overruling
our previous finding that a prima facie case had been
made. For we have already found that the five letters
sent by Moore, four of which were signed by him as
business representative of Locals 47 and 158(A),
requesting Respondent to discuss a collective-bar-
gaining contract, even if they were considered to be
somewhat ambiguous if taken out of context, are
sufficient to show that Moore was not hiding that he
was representing Local 47 in this regard and to
constitute a valid demand on behalf of Local 47,
when only Local 47 was certified and absent any
questioning of his, authority to do so or any confusion on
the part of Respondent as to which union was
demanding bargaining. Certainly to find that Moore
in signing these letters as a business agent for Local
47 as well as Local 158(A) was attempting to conceal
the fact that he was acting as an agent of Local 47 is
totally unwarranted. For, if he wanted to keep his
role as Local 47's agent secret, he would never have
mentioned Local 47 at all. Moreover, Respondent
declined to offer any testimony that Moore was not
properly designated as the bargaining representative
of Local 47, or that Respondent was in any way
confused as to the identity of the union claiming to
represent its employees.
The Administrative Law Judge attempted to
bolster his finding that Moore did not disclose that
Local 47 was the sole party in interest by finding that
Moore did this because he sought to make Local
158(A) the representative of Respondent's employees
as shown by the fact that the original charge was
filed by Local 158(A); the original complaint alleged
that Local 158(A) had the status of joint representa-
tive with Local 47; and the representative of the
General Counsel at the original hearing stated that
the two locals constituted a "joint local." We fail to
see how these postdemand facts are relevant to a
s It is a well accepted principle of law that
The failure to bring before the tribunal some circumstance, document,
or witness, when either the party himself or his opponent claims that
the facts would thereby be elucidated, servec to indicate, as the most
939
finding that Respondent was in fact misled at the
time of the demands as to whether Moore was
representing Local 47 or as to which union was
requesting it to bargain, the issue herein. Indeed,
Respondent offered no evidence on this issue
although it was given an additional chance to do so.
From this we can only conclude that Respondent did
know what was being asked of it and did not
question Moore's authority to request bargaining for
Local 47.8
In these circumstances, we must reject the Admin-
istrative Law Judge's credibility resolutions and his
findings of fact dependent thereon. What the
Administrative Law Judge has done is to seize on a
technicality concerning the letters, namely, that they
were not signed by Moore solely as business agent of
Local 47, to justify a blatant attempt by Respondent
to thwart every reasonable attempt by the certified
bargaining agent to initiate bargaining. The simple
facts are that following the certification of Local 47
all advances to the Respondent made by Local 47
were rebuffed for no apparent reason . The Respon-
dent's assertion that it did not receive a request to
bargain from the certified bargaining representative
did not surface as an issue until the date of the
original hearing in this matter. The unreturned phone
calls, the obvious attempts at buck passing by
various supervisors of Respondent, and the refusal to
accept mail from the Union, as set forth in our
original Decision and in the Administrative Law
Judge's Supplemental Decision, clearly establish
Respondent's real motives in this case.
Accordingly, we find that a valid demand to
bargain was made on behalf of Local 47, the certified
bargaining representative of certain of Respondent's
employees, which the Respondent ignored. We
therefore conclude that Respondent has refused to
bargain with Local 47 in violation of Section 8(a)(5)
and (1) of the Act.
THE REMEDY
Having found that 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 therefrom and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
natural inference, that the party fears to do so, and that this fear is
some evidence that the circumstance or document or witness, if
brought, would have exposed facts unfavorable to the party Wigmore,
Evidence, sec 284
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit . See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5),
cert . denied 379 U.S. 817( 1964); Burnett Construction
Company, 149 NLRB 1419, 1421, enfd . 350 F.2d 57
(C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Avon Convalescent Center is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service, Hospital, Nursing Home and Public
Employees Union, Local 47, Service Employees
International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All employees of the Employer at its facility in
Cincinnati, Ohio, who perform service and mainte-
nance work relating to patient service, including
nurses aides, orderlies, housekeeping employees,
maids, janitors, laundry employees, grounds mainte-
nance employees, and kitchen employees, but ex-
cluding graduate and licensed practical nurses, all
office clerical employees, registered nurses, beauti-
cians , doctors, all other professional employees,
activities personnel , guards , and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since October 11, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about October 17, 1972, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained , and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Avon Convalescent Center , Cincinnati, Ohio, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Service,
Hospital , Nursing Home and Public Employees
Union, Local 47, Service Employees International
Union, AFL-CIO, as the exclusive representative of
its employees in the following appropriate unit with
respect to rates of pay , wages , hours of employment,
and other terms and conditions of employment:
All employees of the Employer at its facility in
Cincinnati, Ohio, who perform service and
maintenance work relating to patient service,
including nurses aides , orderlies , housekeeping
employees , maids , janitors , laundry employees,
grounds maintenance employees , and kitchen
employees , but excluding graduate and licensed
practical nurses , all office clerical employees,
registered nurses , beauticians, doctors , all other
professional employees, activities personnel,
guards , and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization , to form, join, or
assist the above-named or any other labor organiza-
tion , to bargain collectively through representatives
of their choosing , to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any
or all such activities, except to the extent that such
right may be affected by the provisos in Section
8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Recognize and bargain collectively with the
above-named Union as the exclusive bargaining
representative of its employees in the aforesaid
appropriate unit with respect to rates of pay, wages,
hours of employment , and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
contract.
AVON CONVALESCENT CENTER
(b) Post at its premises in Cincinnati, Ohio, copies
of the attached notice marked "Appendix. " 9 Copies
of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60(consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER, dissenting:
My colleagues here have engaged in a strange set of
procedural practices which succeeded in confusing
the Administrative Law Judge, which confuse me
even more,10 and which have now led them to what
seems to me to be a wholly unsupportable conclu-
sion.
General Counsel here originally alleged a refusal to
bargain with Local 47 and Local 158(A), both of
which, the complaint said, had been certified by the
Board.
The complaint was just plain wrong. There had
been no certification of Local 158(A) and at no time
did Local 158(A) have any right to bargain for
Respondent's employees, either alone or jointly with
Local 47. When those facts came out in the evidence
at the first hearing, and when the further facts came
out that all the bargaining demands herein had either
been made by Local 158(A) or, at most, by Local
158(A) and Local 47 jointly, the Administrative Law
Judge quite properly dismissed the complaint.
My colleagues reversed, erroneously in my view (as
indicated in my dissent to that decision), then made
the Iremarkably,confused pronouncement, that "with-
out passing on the merits of the case, a prima facie
case has been established" (emphasis supplied), and
remanded the case for further hearing.
The Administrative Law Judge has pondered the
posture in which that inarticulate prose left the
matter, and concluded, quite understandably, that
the Board must have intended him to perform some
further judicial function, else it would have decided
the case the first time around. For the posture of the
case at that time was that Respondent had rested its
case.
9 In the event that 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 National 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."
941
Thus the merits were, at that time, before the
Board. Respondent had sought no further hearing,
nor had General Counsel sought to amend his
complaint. All issues were ripe for decision, yet my
colleagues "without passing on the merits of the
case" remanded it for something.
The second "hearing" proved as futile as might
have been expected. Respondent, having rested once
already, rested again.
General Counsel then, over Respondent's objec-
tion, amended his complaint to allege certification,
demands for bargaining, and a refusal to bargain
exclusively as to Local 47. Respondent, under
protest, filed an amended answer. General Counsel
offered no new evidence to support the allegations
which were here for the first time made-quite
inconsistently with the allegations of the initial
complaint as to which evidence had been tendered at
the first hearing. Respondent offered no evidence
and again rested.
The Administrative Law Judge then issued his
decision, which, of course, is the first and only
decision as to whether the allegations of the second
and different complaint is supported by the evi-
dence-albeit evidence offered'to support a wholly
different complaint alleging wholly inconsistent
factual matters.
My colleagues, at the time of their first decision
herein, had, of course, never seen such a complaint,
although they were willing enough to find that a
prima facie case had been made out to support
it-"without passing on the merits."
They now, in their supplemental decision, criticize
the Administrative Law Judge for failing to under-
stand what the Board means when it finds that a
prima facie case has been made out to support a
nonexistent complaint "without passing on the
merits," and seem to suggest that he should not have
bothered to analyze whether the new complaint,
which for the first time alleged that a bargaining
demand limited to Local 47 had been made and
unlawfully refused, was properly supported by
evidence offered to support a complaint resting on a
quite different set of factual and legal premises.
I, on the contrary, think the Administrative Law
Judge did a creditable job of facing up to the
procedural morass which my colleagues created
under the euphemistic rubric of "doing justice." And
on the merits, I think his decision to be on sounder
grounds than that of my colleagues.
There is simply no room in this record to find that,
io The majority, in twitting me concerning this confusion , relies on
Hamlet , which I find clearly distinguishable , this being an 8(aX5) case,
whereas the issue in Hamlet, as I have always understood it, was essentially
a "2(b)" dilemma.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the new complaint alleges, there was ever a
demand made by Local 47 for bargaining with it as
the exclusive agent for Respondent's employees. My
colleagues conclude that "Moore's letters, although
on Local 158(A)'s stationery and signed by him as a
representative of Local 47 and Local 158(A), consti-
tuted a valid request on the part of Local 47 for
bargaining as required by the Act. . . ." (Emphasis
supplied.) This statement of my colleagues' conclu-
sion is internally self-contradictory and carries its
own death-wound within it.
There is just no way that a demand for bargaining
made by a person purporting, in making the demand,
to be the agent of two different locals, can be
construed as a demand to bargain exclusively as the
agent of only one. The Administrative Law Judge so
found and, in my view, was clearly correct in so
finding.
General Counsel, belatedly, has now amended his
complaint to allege that only Local 47 was the
certified agent, and the evidence supports that
allegation.
But the new complaint also alleges, for the first
time, that bargaining was sought by Local 47 as the
sole and exclusive agent of the employees. That
allegation is not supported by the evidence, since, as
the Administrative Law Judge found, bargaining
was, at all times relevant hereto, sought either by
Local 158(A) (as the initial complaint alleged) or by
Locals 47 and 158(A) jointly, which is the most that
can be said for Moore's letters on which my
colleagues erroneously rely.
Thus, in my view, the Administrative Law Judge
has properly dismissed this case twice-once on a
complaint which was wrong in its allegations as to
who held the bargaining rights, and the second time
on a complaint which has yet to be supported by any
evidence in alleging that a proper demand for
bargaining was made for bargaining by the only local
which did hold bargaining rights. The first dismissal
should have been sustained, and so, now, should the
second.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given
an opportunity to present evidence and argument, it
has been determined that we violated the law by
committing unfair labor practices. In order to
remedy such conduct, we are being required to post
this notice. We intend to comply with this require-
ment, and to abide by the following commitments:
WE WILL recognize and bargain with Service,
Hospital, Nursing Home and Public Employees
Union, Local 47, Service Employees International
Union, AFL-CIO, as the exclusive bargaining
representative of our employees in a unit com-
posed of all employees of the Employer at its
facility in Cincinnati, Ohio, who perform service
and maintenance work relating to patient service,
including nurses aides , orderlies , housekeeping
employees, maids, janitors, laundry employees,
grounds maintenance employees, and kitchen
employees, but excluding graduate and licensed
practical nurses , all office clerical employees,
registered nurses , beauticians , doctors , all other
professional employees , activities personnel,
guards, and supervisors as defined in the Act,
regarding their rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and, if an understanding is reached,
embody the same in a signed contract.
WE WILL NOT, in any like or related manner,
interfere with, restrain , or coerce our employees,
with respect to their exercise of rights which
Section 7 of the National Labor Relations Act
guarantees.
All our employees are free to become, remain, or
refrain from becoming or remaining members of
Service, Hospital, Nursing Home and Public Em-
ployees Union, Local 47, Service Employees Interna-
tional Union, AFL-CIO, or any other labor organi-
zation, except to the extent that this right may be
affected by an agreement requiring membership in a
labor organization as a condition of employment,
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended.
AVON CONVALESCENT
CENTER
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 3003,
550 Main Street, Cincinnati, Ohio 45202, Telephone
513-684-3686.
AVON CONVALESCENT CENTER 943
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was initially tried before me in Cincinnati, Ohio, on March
20, 1973. The charge and amended charge were filed by
Service Employees International Union, Local 158(A),
herein called Local 158(A), on November 20, and
December 21, 1972. Said trial was conducted on a
complaint issued by the Regional Director for Region 9 on
January 9, 1973, which alleged that Respondent, Avon
Convalescent Center violated Section 8(a)(5) and (1) of the
Act by failing to bargain collectively with both Local
158(A) and Service, Hospital, Nursing Home and Public
Employees Umon, Local 47, Service Employees Interna-
tional Umon, AFL-CIO, herein called Local 47. An
answer was duly filed by the Respondent. By way of
background I note that the complaint further alleged
certain subordinate facts, including allegations to the effect
that both Local 47 and Local 158(A) were certified on
October 11, 1972, by the Board in Case 9-RC-9229 in an
appropriate unit, that Local 47 and Local 158(A) are the
exclusive bargaining representatives of employees in said
unit, that Local 47 and Local 158(A) demanded that
Respondent recognize and bargain with said organizations,
and that Respondent failed and refused to bargain with
Local 47 and Local 158(A).
From the original pleadings, it would appear that this
case presents the not unfamiliar type proceeding in which,
after a Board-conducted election, an employer has refused
to bargain with a recently certified majority representative.
It became quickly evident, however, at the original hearing,
that such was not the case, for undisputed fact established
that Local 47, not Local 158(A), was the certified
representative, and that employees in the appropriate unit
were never accorded a voice in altering the identity of their
exclusive representative so as to include Local 158(A).
Despite the foregoing, the General Counsel rested his case,
without requesting amendment of the complaint, and
without any indication, prior to resting, that a bargaining
order was being sought exclusively on behalf of Local 47.1
Immediately at the close of the General Counsel's case, the
Respondent moved for dismissal and rested. This, as far as
I was concerned, closed the evidentiary portion of the case,
and Respondent's motion was viewed as the only remain-
ing matter. That motion was granted orally from the
bench, and the complaint was dismissed on the basis of the
following statement by me:
I am going to grant the Respondent's motion to dismiss
on the limited ground that documentary evidence
which is unchallenged on the record shows that the
certification was issued in the name of Local 47; and
that the basis for the alleged violation as alleged in the
complaint is that there has been a certification of Local
47 along with another Local, which is separately
structured, and which is as far as I am concerned is a
1 On questioning by me, after the evidentiary portion of the case had
closed, counsel for the General Counsel for the first time stated that he was
seeking such a remedy Earlier, in the course of his opening statement, also
stranger-as far as the proof is concerned is a stranger
to the proceeding.
The complaint alleges that demand for recognition was
made on behalf of both Locals; that the refusal to
bargain was directed at both Locals; and that the
certification was in the name of both Locals.
Section 9(a) and Section 8(a)(5) provide the duty to
bargain shall be with the exclusive bargaining repre-
sentative of the employees. The facts alleged in the
complaint when related to those established do not
substantiate refusal to bargain as to Local 47, the
certified representative.
I want to further state that as I view this proceeding
Local 47 is a stranger. I shall not regard anything done
by Local 158(A) in the name of Local 47 as binding on
Local 47. I do not regard my ruling, and though it may
be subject to some other judge and in some other
jurisdiction or before the N.L.R.B. or before the
Division of Judges of the N.L.R.B. to the contrary, I do
not regard my ruling on this matter as resjudicata as
against Local 47.
1 grant the motion to dismiss, and the proceeding is
closed.
Thereafter, on March 30, 1973, the General Counsel filed
a request for review of Administrative Law Judge's
granting motion to dismiss complaint, stating, inter alia,
but in material part, as follows:
... the Respondent apparently contends that it has
no obligation to bargain with Local 47 inasmuch as the
request to bargain was made by a representative of
Local 158(A) on behalf of Local 47. The evidence
adduced at the hearing clearly shows that this argu-
ment advanced by the Respondent is totally specious
and inconsistent with the intent and purposes of the
Act. Further, it is submitted that the Administrative
Law Judge erred in granting Respondent's motion to
dismiss the complaint based on this theory.
On June 22, 1973, the National Labor Relations Board
issued its Decision and Order, remanding this proceeding
"for further hearing." 2 In reversing the undersigned's
dismissal of the complaint the Board stated:
In these circumstances, where the evidence so far shows
that Respondent's refusal to meet with the Union was
not based on any doubt as to the authority of Singleton
or Moore to represent Local 47, Respondent knew
Local 47 was the certified representative, and Moore
was the authorized representative of Local 47, the
acknowledged certified representative of Respondent's
employees; and the complaint alleges in part that Local
47 was the certified representative, a recognition
demand was made on behalf of Local 47, and the
refusal to bargain was directed at Local 47, we
on questioning by me, the General Counsel had expressed his belief that the
two Locals are "one and the same "
1 204 NLRB No 64
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that, without passing on the merits of the
case, a prima facie case has been established which
requires the Respondent to present counterevidence or
take the risk of an adverse finding. Accordingly, the
ruling of the Administrative Law Judge in granting
Respondent's motion to dismiss was in error insofar as
the complaint alleges that Respondent refused to
bargain collectively with Local 474
4 Nothing in this Decision condones the General Counsel's failure to
amend the complaint to reflect the fact that this proceeding only involves
a refusal to bargain with respect to Local 47, the only union that is the
certified representative , nor precludes the General Counsel from amending
the complaint subsequently . However , as our dissenting colleague notes,
"the technicalities of common law pleading need not be followed" and the
Federal Rules of Civil Procedure are to be construed liberally to do
justice No equitable argument can be made that Respondent did not
know that only Local 47 was the certified representative or what was
being asked of it by the numerous requests to bargain . Therefore, to
sustain the Administrative Law Judge 's action in dismissing the entire
complaint orally from the bench will only penalize the employees by
delaying collective bargaining further This is scarcely to do Justice
Pursuant to the Board's Order, a reopened hearing was
conducted on August 22, 1973. The hearing was opened
with Respondent being accorded an opportunity to present
additional evidence. Respondent, declined to do so, stating
through counsel, "Your Honor, the Respondent has in the
previous hearing indicated that it rests and it reiterates that
position today." Thereupon, the General Counsel moved to
amend the complaint so as to allege certification, demands
for bargaining, and a refusal to bargain exclusively as to
Local 47. Over Respondent's objection, the request to
amend the complaint was granted by the undersigned, but
solely on grounds that my interpretation of the Board's
remand order left me no discretion in this regard. Permis-
sion was given Respondent to amend the answer so as to
conform to the revised complaint. In doing so, Respondent
indicated that his action was not intended as a waiver of
exceptions to my having granted the amendments to the
complaint.
It is in this posture, that, pursuant to the Board's Order,
this case is before me "for the preparation of a decision."3
Based on my review of the entire record, including the
Board's Decision and Order, observation of the witnesses,
and the posthearing briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint, as amended, alleges, the amended answer
admits, and I find that Respondent is an Ohio corporation
engaged in the business of operating a proprietory nursing
home in Cincinnati, Ohio, from which, in the 12 months
preceding issuance of the complaint, a representative
period, it derived gross revenues exceeding $100,000.
Respondent, during said representative period, also pur-
chased goods and services valued in excess of $10,000
which it caused to be shipped from points outside the State
of Ohio directly to its location in Cincinnati, Ohio.
I find that Respondent is, and at all times material has
been , an employer as defined in Section 2(2) of the Act
engaged in commerce and operations affecting commerce
within the meamng of Section 2(6) and (7) of the Act.
iI. THE LABOR ORGANIZATION INVOLVED
The complaint as amended alleges , and the amended
answer denies that Local 47 is a labor organization within
the meaning of Section 2(5) of the Act. Mr. Ed Moore
credibly, and without contradiction, testified that Local 47
is an organization which admits employees to membership
and, in which, employees are entitled to participate, and
that said organization exists to negotiate contracts con-
cerning wages and working conditions and for the purpose
of processing grievances of employees. Local 47 was
certified for employees of Respondent in an appropriate
unit on October 11, 1972 in Case 9-RC-9229. On the basis
of the foregoing , I sustain the allegation in the amended
complaint that Local 47 is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The sole issue in this case is whether a demand for
bargaining was made which was effective to impose a duty
on Respondent to bargain collectively with Local 47. I am
satisfied , as will be seen , infra, that no such demand was
made and, on that basis , I shall recommend dismissal of
the complaint . However, a question exists in my mind as to
whether-by virtue of certain language in its Decision and
Order, and in the face of the Respondent's opting again to
decline to present evidence of its own-the Board has
foreclosed me from making an independent judgment on
the merits of this issue. It will be recalled that in its
Decision the Board stated , "we conclude that , without
passing on the merits, a prima facie case has been
established which requires the Respondent to present
counterevidence or take the risk of an adverse finding."4
Removed from context, this language could be interpreted
as the equivalent of a direction that , based on Respondent's
second refusal to present an affirmative case at the
reopened hearing , I engage in the ministerial act of
recommending an order sustaining and appropriately
remedying the allegations in the complaint , as amended.
However, considering the procedural background, against
which the Board made the above statement , I cannot
assume that such was its intention . Instead , I construe the
Board's Decision as predicated on a review of the record in
the light most favorable to the party aggrieved (i.e., the
General Counsel) by my dismissal of the case from the
bench. I view the Board's finding of a prima facie case in
that limited light. For, if the Board had intended to
foreclose me from engaging in a present, independent
consideration of the merits , it seems that customary
administrative and judicial practice and the need to avoid
delays in cases of this nature would have dictated that the
Board not remand this proceeding for additional hearing.
It will be recalled that, in dismissing the complaint at the
3 204 NLRB No 64
4 204 NLRB No. 64
AVON CONVALESCENT CENTER
original hearing, I acted only after both the General
Counsel and Respondent had rested. Thus, the evidentiary
portion of the case had closed. The parties, including
Respondent, had voluntarily elected to stake the outcome
on the record made to that point. Quite obviously the
Board, in considering the appeal from my dismissal, on
that very record would have reversed me outright, without
a remand, had it intended its decision to be a conclusive
determination of the merits of this case. With due respect
to the Board, this of course is only my interpretation of its
words and actions.5 If it intended otherwise, I am certain
that it will say so, but if my construction is correct, my own
determination of the merits at this time could avoid
another remand.
B. Concluding Findings as to the Demand for
Bargaining
1. Factual analysis
On October 11, 1972, the Regional Director for Region 9
issued a certification designating Local 47 as the exclusive
representative of Respondent's employees in the appropri-
ate unit at Cincinnati, Ohio.
With this in mind, it is noted that the General Counsel in
his request for review to the Board of my oral dismissal of
the case, and again in his posthearing brief to me, includes
a statement that "a request to bargain was made by
representatives of Local 158(A) on behalf of Local 47."
The precise meaning of this reference is not entirely clear,
but if, thereby, a factual argument is being made to the
effect that Respondent was expressly informed that bargain-
ing was being requested exclusively on behalf of Local 47,
that argument is totally without record support. There is
neither evidence to that effect, nor does it appear from the
total circumstances that Respondent had a reasonable
basis for believing that a demand for bargaining was at any
time being made on behalf of Local 47 only.
Instead, for the reasons stated below, I am persuaded
that union representatives, through their entire course of
conduct, communicated with Respondent in a manner
plainly suggesting that Local 158(A) was asserting a real
interest in representing employees in the appropriate unit. I
am of the further view that Local 47 was represented to
Respondent as, at best, having the status of a joint
representative, along with Local 158(A).
Thus, the record shows that, at all times material, Local
47 and Local 158(A) are and have been separately
structured and autonomous sister locals of the same
International Union, with distinct memberships, slates of
officers, financial structures, and bases of operation. Prior
to May 1, 1972, Local 47 had offices in Cincinnati, and was
5 It is noted that the General Counsel in his brief to me does not assert
that 1, in view of the Board's remand , do not have independent discretion
over disposition of the merits of this case.
6 The degree of separation attained by the International is not impugned
by the testimony of Edward Moore, the elected business representative of
Local 158(A). to the effect that he had no knowledge that, since May 1972,
Local 158(A) was conducting all organization efforts among nursing home
employees in the Cincinnati area He based Ins denial of knowledge upon
the fact that two International representatives were functioning in his area,
and his claim that be would have no knowledge of what Local they chose to
"file" under. I simply do not believe, considering the International's earlier
action, which Moore himself described, that Moore would not know of an
945
engaged in organizing nursing homes in the Cincinnati
area. However, on May 1, 1972, during the pendency of
Local 47's petition in Case 9-RC-9229, and while that
Local's organization campaign among Respondent's em-
ployees in Cincinnati was underway, Local 47's headquar-
ters was transferred to Cleveland, pursuant to a direction
of the executive board of the International Union. In
addition, Local 158(A) was thereby awarded jurisdiction
over nursing homes in the Cincinnati area, the organiza-
tional authority of Local 47 being given over to Local
158(A). After that date, Local 47 is not shown to have
commenced further organization of nursing homes in
Cincinnati, but was actively engaged in such activities in
the Cleveland area. Subsequently, the alignment estab-
lished through the International's allocation of jurisdiction
between the two Locals became a reality through the
transfer of Local 47's only other bargaining unit in
Cincinnati to Local 158(A).6 Despite the fact that these
changes occurred several months prior to the execution of
the stipulation for certification agreement7 in Case
9-RC-9229 and well before the election,8 no effort was
made to modify the identity of the petitioner in that case,
and, in consequence, Local 47 was ultimately designated
by a majority of Respondent's employees, and, on the basis
thereof, was named as the certified representative. No
membership vote has since been conducted among
Respondent's employees changing the identity of their
certified representative.
Following the certification, Nettie Singleton, an organiz-
er for the International with which both Local 158(A) and
Local 47 are affiliated, made several efforts to reach
Respondent. As the Board stated in its decision, "Singleton
testified that following the certification she made several
unsuccessful attempts to contact responsible officials of the
Respondent by telephone in order that negotiations might
commence, each time identifying herself and leaving word
to call. She received no response."9 Singleton's testimony,
in other respects, plainly reveals that, after May 1, 1972,
she was highly uncertain as to (1) the relationship between
the two Locals, (2) her responsibilities to them, and (3)
which of the two Locals she was working through. It is in
this light that I assess Singleton's testimony that in her
telephone contacts with Respondent, she identified herself.
As to this, Singleton does not define how she identified
herself, and considering the confusion that obviously
existed in her own mind as to whom she was working for, it
would be totally unreasonable for me to assume that she
advised Respondent's representative that she was calling
on behalf of Local 47.10 From Singleton's testimony and
actions it seems more likely to me that she identified
herself as an agent of Local 158(A) than Local 47, and,
organizational drive conducted on behalf of a sister local to Local 158(A)
after May 1, 1972. Nor do I believe that the International representatives
were not instructed as to the jurisdictional divisions between the sister
locals. Although remotely possible, I do not believe it likely that , after May
1, 1972, any such organizational activity was under way in Cincinnati other
than that conducted on behalf of Local 158(A).
7 That agreement was executed on August 15, 1972.
8 The election was conducted on September 29, 1972.
9 204 NLRB No. 64.
10 Documentary evidence as well as certain portions of her testimony
indicate that Singleton at the time of these phone conversations believed she
was working for Local 158(A), and not Local 47. In G. C. Exhs. 9 and 10, a
(Continued)
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordingly, her testimony is of no aid to the General
Counsel's case."
Ed Moore, being the elected business representative of.
Local 158(A), presumably has responsibility coextensive
with the authority vested in that Local, and in his dealings,
in the Cincinnati area, would normally be associated with
that Union. Moore testified, however, that he also acted as
business agent of Local 47 with respect to that Local's
Cincinnati accounts. He described his authority in this
regard as having been delegated by Local 47's president.
However, Moore did not testify that he ever informed
Respondent that he had been accorded such authority
from Local 47, there is no evidence that such information
was provided to Respondent by responsible or other
regular officials of Local 47, or anyone else and, according-
ly, I find that Respondent had no reasonable basis for
believing that Ed Moore, in fact, was authorized to act as
business agent for Local 47.
Moore further testified, as the Board observed in its
Decision remanding, that " `[t]he Avon Convalescent
Center belongs to Local 47' and in all matters relating to
this proceeding he was acting for Local 47 as a favor to a
sister local." 12 I find this portion of Moore's testimony
incredible and unworthy of belief. My reasons for doing so
are set forth, infra.
After Singleton received no response from her phone
calls to Respondent, Moore initiated a series of five written
bargaining requests 13 to Respondent. All five were in
envelopes, with the following imprinted on the face thereof
in the upper left hand corner,
Service Employees, International Union
Local 158-A
Room 407-12 East Sixth Street
Cincinnati, Ohio 45202
Ed. Moore Business Rep.
All five were under Local 158(A)'s letterhead. None made
reference to, or acknowledged, that Moore was acting on
behalf of Local 47 exclusively. All but one of said letters
contained a reference to Local 47 at one point only;
namely, below the line containing Moore's signature,
appearing as follows:
Ed Moore, Business Representative
Locals #47 and 158-A SEIU
The other letter, that dated November 29, 1972, makes no
letter, dated November 29, 1972, seeking bargaining, apparently signed by
herself and Ed Moore, the following appears under her signature*
Nettie Singleton
Organizer
SEIU, Local 158-A
Similarly, the original charge, filed in this proceeding dated November 20,
1972 makes no reference to Local 47, but was signed by Singleton on behalf
of Local 158(A) and alleges a refusal to bargain solely as to Local 158(A).
Singleton's actions, in this respect, occurred shortly after her abortive
telephone contacts with Respondent
11 Frederick H. Zurmuhlen Assoc, 189 NLRB 463, 465, cited by the
General Counsel, is inapposite , for there the union agent specifically
reference to Local 47, whatever, and would be taken by the
reader as written exclusively on behalf of Local 158(A).
Aside from the absence of evidence showing a demand
exclusively on behalf of Local 47, the rightful beneficiary
of the certification, the identity of the true Local in interest
remained in a confused state as of March 20, 1973, when
this matter was originally heard. Thus, the original charge,
filed on November 20, 1972, and immediately after the
alleged requests for bargaining, made no reference to Local
47. Instead it states:
On or about November 6, 1972 and thereafter, the
above named Employer has refused to bargain collec-
tively with Service Employees International Union,
Local 158-A, in violation of Section 8(a)(5) of the Act.
The allegation in this charge may be attributed to innocent
inadvertence, but it also might be viewed as bearing upon
the state of mind of union agents covering the Cincinnati
area during the period after Local 47's certification.
The amended charge, filed a month later, on December
21, 1972, did contain reference to Local 47, but not in
terms that could reasonably be construed as actions
exclusively on behalf of that Local. That charge recited
that:
On or about November 6, 1972, and thereafter, the
above named employer has refused to bargain collec-
tively with Service, Hospital, Nursing Home & Public
Employees, Local 47, and Service Employees Interna-
tional Union, Local 158(A), AFL-CIO, in violation of
Section 8(a)(5) of the Act.
The above charges, led to issuance of a complaint which,
as previously indicated, and in the light of Local 47's
certification, alleged facts which as a matter of Board law
failed to state a cause of action 14 and differed materially
from the position taken by the General Counsel in
response to Respondent's motion to dismiss. These
allegations included assertions that both Local 158(A) and
Local 47 had been certified, that both represented a
majority of Respondent's employees, that demands for
recognition were made on behalf of both, and that
Respondent by refusing to bargain with both violated
Section 8(a)(5).15
Early in the original hearing, it became evident that the
General Counsel was not initially under the impression
that Local 47 was a separate entity on whose exclusive
behalf bargaining was being sought. When I questioned
him as to the transition from Local 47 to Local 158(A), he
responded:
identified the majority representative in his telephonic demand.
11 204NLRBNo 64.
13 The Board inadvertently stated that there were six of such letters The
confusion probably stems from the fact that G C Exh. 10 includes a copy
of G C Exh 9
14 See e g Super Sagless Spring Corporation, 125 NLRB 1214, 1215, 1237,
Leroy Stovesand Motor Company, 127 NLRB 19,24-25
15 Although during the reopened hearing, I granted the General
Counsel 's request to amend the complaint , that action does not preclude
considering the manner in which the complaint was originally drafted as
evidence bearing on the question of whether Local 158(A) was asserting its
own interest or merely acting as a, conduit in the interest of Local 47
AVON CONVALESCENT CENTER 947
Your Honor, as I understand it, the Locals is a joint
Local, and the Local numbers are used synonymously.
Mr. Moore is the Business Agent for both Local 47 and
Local 158(A). Some of the correspondence, most of it
as a matter of fact, was sent on behalf of Local 47
and/or 158(A), or some was sent exclusively in the
name of 47 and some was-one or two letters I believe
was sent by Mr. Moore as Business Respresentative for
158(A).
I don't think there's any transition. I think they're
one and the same. [Emphasis supplied.]
Although the General Counsel innocently misstated that
demands were made disjunctively on behalf of the two
Locals or exclusively in the name of Local 47, his other
representations as to the status of the two Locals are hardly
consistent with a view that Local 158(A) was not claiming
a beneficial interest in the certification. Indeed, had no
answer been filed to the complaint as originally drafted, a
summary order would have issued directing Respondent to
bargain with both Locals, though employees had never, in
any form, designated Local 158(A). This could not have
been lightly dismissed as a technical discrepancy.
Based on the foregoing, I am satisfied and find that
following Local 47's certification, it remained the only
labor organization as to which Respondent had an
obligation to bargain. I further find that, though Moore
testified that he acted exclusively on behalf of Local 47 in
his attempts to secure bargaining, neither he, nor anyone
else, communicated this to Respondent, and at no time was
Respondent ever informed that bargaining was being
requested exclusively by or on behalf of Local 47.
Furthermore, I discredit Moore's testimony that his
actions in this case were on behalf of Local 47, and reject
the General Counsel's arguments based thereon. If that
was Moore's intention, the simplest and most obvious
course, would have been to communicate this to the
Employer, and pave the way for a speedy 8(a)(5) remedy, if
necessary, through invocation of the Board's summary
judgment procedures, customarily resorted to in cases of
this type.'6 But not only was no such intention communi-
cated to Respondent by Moore, but it does not appear
from their actions that prior to the trial in this case either
Singleton, who apparently acted under Moore's direction
in this matter, or the Regional Director, or counsel for the
General Counsel, were ever advised that Local 47 was the
sole party in interest in this proceeding. In my judgment,
Moore's failure to make a disclosure to that effect was
because he had no such intention, but saw this case as
presenting an opportunity to attain symmetry with the
International's earlier allocation of jurisdiction to Local
158(A) in the Cincinnati area by obtaining, at least, de
facto representative status for that Local, and then having
the Board stamp its approval on said arrangement. In my
16 In my opinion, Respondent's denial that Local 47 is a labor
organization would not necessarily preclude summary judgment in a case of
this type Unless, more is involved than was presented here, at worst, that
issue could be disposed of on the basis of affidavits
17 Redo Photo Supph' Corp v. 1V L R B, 321 U.S 678, at 683-684
is N L RB v Columbian Enameling and Stamping Co, 306 U.S 292,
296-299
19 See 204 NLRB No. 64. 1 have taken the liberty to qualify the Board's
judgment, such an objective on the part of Moore is borne
out not only by his letters to the employer, one of which
contained no reference to Local 47 whatever, but also
explains (1) the content of the charges filed by Singleton,
the original of which would lead the reader to believe that
Local 158(A) was the only union in the picture, (2) the
allegation in the original complaint, issued by the Regional
Director, which was replete with factual inaccuracies and
called for a remedy which would give Local 158(A) the
status of a joint representative, and (3) the representations
by the General Counsel to me at the outset of the hearing
that the two Locals constituted "a joint local" and that
"they're one and the same." Moore, obviously, was the key
figure in efforts to secure bargaining, and I think it entirely
implausible that others directly responsible for the unto-
ward efforts to make Local 158(A) appear as a real party in
interest, did so officiously and without counseling from
Moore himself. For these reasons, I find unbelievable
Moore's subjective state of mind testimony as to his
secretly held intentions to act on behalf of Local 47 in this
matter. His actions, and those of others acting in support
of his efforts, are more reliably indicative of Moore's true
intentions.
2. Conclusions
"The National Labor Relations Act makes it the duty of
the employer to bargain collectively with the chosen
representative of his employees. The obligation being
exclusive, see § 9(a) of the Act . . . it exacts `the negative
duty to treat with no other.' "17
Local 47 was certified, after a Board conducted election
as exclusive bargaining representative of Respondent's
employees. Thus, there can be no real issue as to that
Local's representative status in the appropriate bargaining
unit. That certification, however, did not itself impose a
duty on Respondent to seek out Local 47 and request the
latter's participation in collective bargaining. Under
established precedent, Local 47 was first required to signify
to Respondent a desire to negotiate. Without such a
request Respondent cannot be held to have refused to
bargain."'
It is true that the law does not dictate that such a request
be in any particular form, it suffices if the majonty
representative makes it clear that a request to bargain is
being made on behalf of employees in the appropriate unit.
It is also clear that when the request to bargain identifies
the labor organization on whose exclusive behalf bargain-
ing is being sought, "it does not necessarily have to be
made by the employees directly...." 19
Here, however, union representatives did not notify the
Employer that bargaining was being sought exclusively on
behalf of the majority representative. To the contrary, the
documented evidence of such demands purport to show a
demand either on behalf of Local 158(A) exclusively, or on
expression of this principle. For, its relevance appears limited to circum-
stances where the identity of the union in whose behalf a third party is
acting was clearly manifested to the employer I do so because this was
plainly the case in both The Valley Broadcasting Company, 87 NLRB 1144,
and Old Town Shoe Company, 91 NLRB 240, 242, cited by the Board in
support of the quoted proposition. Furthermore, other precedent, cited
below, deems employer knowledge of what is being sought an essential
element of a valid demand
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of Local 158(A) and Local 47 jointly. Furthermore,
surrounding circumstances, including the history of Local
158(A)'s activity in the Cincinnati area since the Interna-
tional's allocation of jurisdiction, the impact of that
alignment upon Local 158(A) and Local 47, the content
and form of the demand letters, and the subsequent
conduct of union representatives, all create a serious
ambiguity,' and would suggest to the impartial observer, as
I have found, that Local 158(A) was asserting a real
interest in its own behalf as to the instant unit. Nonethe-
less, the General Counsel argues that Respondent's action
in either ignoring Moore's letters or responding thereto
without affirmatively asserting that the bargaining requests
were in the name of a representative not designated by the
employees justifies a bargaining order in the name of Local
47 herein.
No authority is cited, however, by the General Counsel
to the effect that, in these circumstances, a duty to respond
might be imposed as a result of a bargaining demand
which neither on its face, nor from the surrounding
circumstances identifies specifically the labor organization
on whose behalf bargaining is sought, and with whom,
Respondent is obligated to bargain. In my view, precedent
is to the contrary.
Where only one union has in any sense manifested an
interest in employees, and the surrounding circumstances
indicate that demands for bargaining are being made solely
on behalf of that union, there can be no question but that
the employer is being called upon to come forth and meet
the statutory bargaining obligations in a context free of
ambiguity. However, where as here, the circumstances are
confused by apparent intervention of a labor organization
or a third person not designated by an employee majority,
the nature of the demand is subject to more stringent
examination.20 Thus, in N.LR.B. v. Columbian Enameling
and Stamping Co., supra, the Supreme Court, in establish-
ing that a valid demand is prerequisite to the imposition of
duty to bargain upon employers, spoke to the question of
third party demands stating, at page 297:
[an employer] ... may ignore or reject propos-
als for such bargaining which come from third persons
not purporting to act with authority of his employees,
20 Indeed, where two locals are involved an employer is required to
proceed carefully, for, an allocation of jurisdiction by an International
union is no defense to an 8(a)(5) charge based on the employer' s recognition
of an entity other than that certified. See, e g, Albert Love Enterprises, 66
NLRB 416, 420.
without violation of law and without suffering the
drastic consequences which violation may entail.
That such a demand, to be effective, must inform the
employer of the identity of the union seeking bargaining,
was made clear by the following test enunciated by the
Court:
To put the employer in default here the employees
must at least have signified to respondent their desire to
negotiate. Measured by this test the Board's conclusion
that respondent refused to bargain with the Union is
without support, for the reason that there is no
evidence that the Union gave to the employer, through
the conciliators or otherwise, any indication of its
willingness to bargain or that respondent knew that
they represented the Union. The employer cannot,
under the statute, be charged with refusal of that which
is not proffered. [Emphasis supplied.]Zi
Considering Moore's correspondence in the light of this
test, it follows that no effective request for bargaining was
made on exclusive behalf of the certified representative.
The Board has held that an employer has no obligation to
bargain with a joint representative, where only one of the
two unions was designated by an employee majority, and
employees had no opportunity to express a choice on the
question of representation by a joint bargaining agent.22
Viewed fairly, the various letters sent by Moore would, at
best, from the General Counsel's point of view, be read by
the Respondent as a claim for representation by Local 47
and Local 158(A) jointly. Such an interpretation would be
consistent with the background evidence including the
International Union's action in May 1972, Local 158(A)'s
taking over the only contract held by Local 47 in the
Cincinnati area, and the present jurisdiction of Local
158(A) in the Cincinnati area over nursing homes. Moore
did not purport to be acting for Local 47 exclusively, and
indeed he had no such intention. Accordingly, the General
Counsel has not shown a demand for bargaining which
reasonably informed the Employer that bargaining on
behalf of the certified representative exclusively was
sought, and, as in Columbian Enameling, supra: "The
21 Since Columbian Enameling involved an incumbent representative,
whose majority was not challenged , the principle could not be viewed
distinguishable on the ground that here we have a certified union
22 Super Sagless Spring Corporation, supra, Leroy Stovesand Motor
Company, supra
AVON CONVALESCENT CENTER
employer cannot, under the statute, be charged with refusal
of that which is not proferred." 23
For all of the above reasons, I find that the General
Counsel has failed to establish by a preponderance of the
evidence that Respondent engaged in a refusal to bargain,
violative of Section 8(a)(5). Accordingly, I shall recom-
mend dismissal of the complaint in its entirety.
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. Service, Hospital , Nursing Home and Public Em-
ployees Union , Local 47, Service Employees International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
23 f am aware of no precedent standing for the proposition that, where,
by virtue of a Board certification an employer knows that a majority of his
employees in an appropriate unit have designated a particular union, the
requirement that a demand be made specifically on behalf of that union is
relaxed and no longer constitutes a precondition for the imposition of a
duty to bargain Indeed, in 8(a)(5) cases where the validity of a recent
certification is being contested, the Board as a matter of standard procedure
dates any 8(a)(5) violation found, from the date of an effective bargaining
demand, rather than the date of the certification See e.g. Sharon Hats,
Incorporated, 127 NLRB 947, 948 This practice is followed routinely by the
Board, despite the inequity that may be imposed upon innocent employees
as a result of delayed or nonaction by their chosen representative
Nor is this a case where refusals to respond or accept the Union' s letters
may he said to preclude an employer from asserting a defense based upon
the absence of a valid demand In such cases, there is no forfeiture of a
viable defense but a company is merely deemed to have " . acted at its
own peril as to the contents of the letters." See N L R B v. Regal Aluminum,
inc, 436 F.2d 525, 527 (C A. 8, 1971), enforcing 171 NLRB 1403 The cases
cited by the General Counsel are perfectly consistent with this test Lynch-
Davidson Motors. Inc, 183 NLRB 841; American Guild of Variety Artists, 162
NLRB 1416, and Ramada Inns. Inc, 174 NLRB 965, 966, all involve
ignored requests to bargain which plainly and unmistakedly identified the
949
3. Respondent has not engaged in conduct proscribed
by Section 8(a)(5) and ( 1) of the Act , by refusing to bargain
with Service , Hospital , Nursing Home and Public Employ-
ees Union, Local 47, Service Employees International
Union , AFL-CIO, because no valid request was made
upon Respondent for bargaining with that labor organiza-
tion.
Upon the basis of the foregoing findings of fact and
conclusions of law , upon the entire record in this case, and
pursuant to Section 10(c) of the Act , I hereby issue the
following:
SUPPLEMENTAL ORDER24
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
union on whose behalf bargaining was sought . To charge Respondent with
knowledge of unopened letters in this case is plainly of no avail to the
General Counsel, for all were intended to be and were ostensibly in the
name of the wrong "representative " Considering the history of this case,
together with the ease with which a proper demand could have been made,
and the reasons why it was not, the instant circumstances , in my opinion, do
not appear to present an appropriate context for relaxing long established
precedent requiring a demand identifying the exclusive statutory representa-
tive as a precondition to an employer's obligation to respond
Finally, I would also note, in passing that there is no evidence before me
that suggests that the Employer here has engaged in overt or other conduct
which would render futile, and thereby dispense with the need for , a valid
demand in this case . See e.g. Roadway Express, 170 NLRB 1446, 1448;
Scobell Chemical Company v. N LR B. 267 F.2d 922, 925 (C.A 2, 1959),
N LR.B. v. American Compressed Steel Corporation, 343 F.2d 307, 310
(CA.D.C, 1965).
24 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.