Elmhurst Care Center

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 1176 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 98
1176
Elmhurst Care Center and Local 1115 Service Em-
ployees International Union1 and Local 300S,
Production Service and Sales District Council,
UFCW,2 and Local 300S, Production Service
and Sales District Council, UFCW
Local 300S, Production Service and Sales District
Council, UFCW and Local 1115, Service Em-
ployees International Union. Cases 29–CA–
22674 and 29–CB–10843
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On January 21, 2000, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The judge
found that the Respondent Employer extended, and the
Respondent Union Local 300S accepted, recognition
prematurely, thereby violating Sections 8(a)(1), (2), and
(3) and 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act, respectively. The Respondent Employer and
the Respondent Union filed separate exceptions and sup-
porting briefs, and the Charging Party Union Local 1115
filed a brief in opposition to the Respondents’ exceptions
and in support of the judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order, as modified.3
I.
The essentially uncontested facts are set forth more
fully in the administrative law judge’s decision. The
Respondent Employer operates a 240-bed skilled nursing
facility. In February 1999,4 the Employer began hiring
and employing employees. On March 5 the Respondent
Union demanded recognition. An authorization card

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO, effective
July 25, 2005.
2 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO, effective July 29, 2005.
3 We shall delete from the judge’s recommended Order the statement
that nothing therein authorizes the Respondent Employer to withdraw
terms or conditions of employment that may have been established
pursuant to its collective-bargaining agreement with Local 300S Pro-
duction Service and Sales District Council, UFCW. See Cascade Gen-
eral, 303 NLRB 656 fn. 14 (1991). We shall also modify the judge’s
recommended Order in accordance with our decision in Ferguson Elec-
tric Co., 335 NLRB 142 (2001). We shall also substitute a new “Notice
to Employees” as well as a new “Notice to Members,” both of which
will reflect these changes to the Order.
4 All dates are in 1999, unless otherwise indicated.
check was conducted by an arbitrator. Notification of the
results was sent to the Respondents on March 8. On
March 12, when there were 47 unit employees on staff,5
the Employer recognized the Union, and the Respondents
executed a bargaining agreement with a union-security
clause on March 19. The first patient was admitted on
April 15, when there were 63 unit employees. By Sep-
tember 1, there were 107 patients and 87 employees.
The Employer expects the number of employees to be
110 when the facility is fully occupied.
The unit employees worked a limited number of hours
during the 2-week payroll period in which the Employer
extended recognition. Until April 15, the employees
were engaged exclusively in setting up the facility and
training. The first employees who were hired worked
one shift and operated and maintained the boiler and
heating equipment. The housekeeping employees
cleaned the floors and bathrooms, emptied waste con-
tainers, and replenished supplies. Meanwhile, the CNAs
were trained in the Respondent Employer’s policies and
procedures. They also set up patient charts and made
beds, in preparation for the facility’s opening. The die-
tary employees, similarly, were trained in tray cart and
equipment setup and they set up storage rooms. Until
April 15, their only cooking was the preparation of staff
meals.
The judge found that the grant of recognition was pre-
mature because (1) the Employer did not at that time
employ a substantial and representative complement of
its projected work force and (2) the Employer was not
then engaged in normal business operations. We find it
unnecessary to pass on the judge’s first finding. We
adopt the judge’s second finding, and therefore affirm
the judge’s decision on that basis.
II.
An employer may grant a union voluntary recognition
if the union presents evidence of majority support in an
appropriate unit. However, a grant of recognition when
the union does not have majority support is unlawful
because it violates the principle of majority rule, embed-
ded in Section 9 of the Act.6 Where a newly opened
business has granted recognition, an issue concerning the
timing of recognition can arise. The Board has long bal-
anced competing interests in these cases. On the one
hand, the Board seeks to vindicate the right of those em-
ployees, already employed, to engage in collective bar-
gaining should they so choose. On the other hand, the
Board seeks to have that choice made, not by a small,
unrepresentative group of employees, but by a group that

5 We note that the payroll records for this period only include data
for 44 of these employees.
6 Ladies Garment Workers v. NLRB, 366 U.S. 731, 738 (1961).
ELMHURST CARE CENTER 1177
adequately represents the interests of the anticipated full
complement of the unit employees—all of whom will be
bound, at least initially, by the choice of those who were
hired before them.7
Balancing those two interests, the Board has long held
that an employer’s voluntary recognition of a union is
lawful only if, at the time of recognition, the employer:
(1) employed a substantial and representative comple-
ment of its projected workforce, and (2) was engaged in
its normal business operations. See, e.g., Hilton Inn Al-
bany, 270 NLRB 1364, 1365 (1984). The test is in the
conjunctive: if either prong is not met, a grant of recogni-
tion is unlawful. See A.M.A. Leasing, 283 NLRB 1017,
1024 (1987) (a finding that the employer “was not en-
gaged in normal business operations . . . would alone
establish a violation”).8 In this case, as mentioned, we do
not address the judge’s findings concerning the substan-
tial and representative complement prong of the test be-
cause we find that the evidence plainly establishes that
the Respondent Employer was not engaged in its normal
business operations at the time it extended recognition to
the Respondent Union.9
In the instant case, on the date recognition was
granted, March 12, there were no patients; the first would
not arrive for about 1 month. Also, the employees were
working relatively few hours and their responsibilities

7 See Scottex Corp., 200 NLRB 446, 451 (1972), citing Lianco Con-
tainer Corp., 173 NLRB 1444, 1447–1448 (1969). (“[A] bargaining
agreement executed before a substantially normal complement of em-
ployees is at work, or at a time when the employer’s operations are
incipient, merely preliminary, or insubstantial, tends to foist that union
and that agreement upon the working force to be hired, and deprives the
employees of the freedom of choice guaranteed by the Act.”).
8 Our dissenting colleague acknowledges that the Board applies the
two-pronged test to determine whether there has been premature recog-
nition of a bargaining representative. Nevertheless, she contends that
any inquiry into whether the employer was engaged in normal business
operations at the time of recognition is “arguably superfluous” and
“serves no clear statutory purpose.” She contends that the legality of
recognition should focus only on whether there is a representative
complement to decide the question of union representation. The short
answer to our colleague is that no party has asked that this precedent be
overturned, and the matter has not been briefed. Thus, quite apart from
our view that the two-prong test is appropriate and proper in cases of
this nature, we rely on extant Board law.
9 The Respondent Employer filed a posthearing motion to supple-
ment the record. On January 13, 2000, the judge denied the Respon-
dent Employer’s motion. The Respondent Employer excepts to the
judge’s ruling denying its motion. The evidence that the Employer
seeks to adduce goes to the issue of substantial and representative com-
plement. Because we are not deciding the case on that basis, and be-
cause in any event the evidence antedates the hearing, we deny the
motion. See Board’s Rules and Regulations Sec. 102.48(d)(1).
Before the Board, the Respondent Employer moved that the judge’s
ruling denying its motion to supplement the record and the related
correspondence be included in the record, citing Sec. 102.26 of the
Board’s Rules and Regulations. We grant that motion in so far as it
pertains to the judge’s ruling, consistent with Sec. 102.26.
were limited to training and other tasks in preparation for
receiving patients. The absence of any patients at the
time of recognition is significant because the LPNs and
CNAs were not performing the principal duties of their
positions, “hands-on nursing care.” Indeed, once patients
began to arrive, the Respondent Employer hired many
more LPNs and CNAs10 to assure adequate nursing cov-
erage.
Further, the limited number of hours worked by em-
ployees at the time of recognition also substantiates the
fact that the facility was not in normal operation. During
the March 7 through 20 payroll period in which recogni-
tion was extended, more than half of the employees
worked fewer than 10 hours; only 25 percent of the em-
ployees worked more than 20 hours. The payroll records
reflect that 44 of the bargaining unit employees worked a
total of 721.5 hours, an average of less than 17 hours per
employee during this 2-week period. Also, although
housekeeping employees constituted almost 40 percent
of the employees, only one housekeeping employee
worked more than 10 hours. In contrast, 1 month later,
during the April 11 through 24 pay period, when the fa-
cility admitted its first patient, 63 employees worked a
total of 3252 hours, an average of 51.6 hours per em-
ployee.
Considering the above, we find that at the time of rec-
ognition the Employer was involved in preparation for
the opening of the facility. It was not engaged in “nor-
mal business operations.” Our conclusion is supported
by extant Board law.
In Hilton Inn Albany, supra, a case similar to this one,
the Board found that neither prong of the premature rec-
ognition test had been met. Included among the factors
relied on by the Board for finding the facility was not in
normal operation at the time of recognition was the fact
that the facility was not open to the public but was in the
early stages of preparations for opening. Id. at 1366
(“The record evidence clearly supports a finding that the

10 As of March 12, LPNs accounted for 1 and CNAs for 16 of the
Respondent Employer’s 47 employees. For the payroll period during
which the first patient was admitted there were 8 LPNs and 23 CNAs.
By September 12, LPNs accounted for 15 and CNAs accounted for 61
of the Respondent Employer’s 87 employees.
Our colleague states that hiring patterns [the number hired, when
and their work hours] with regard to the CNAs and LPNs should be
evaluated when considering the substantial and representative prong of
the Hilton Inn test. However, the two prongs of the test are separate,
and hiring patterns may, as here, be appropriate to consider under the
second prong of the Hilton Inn test as well. Here, the normal business
operation of the Respondent Employer is providing nursing care to its
patients. This fact is reflected in the Respondent’s hiring patterns.
Thus, the number of housekeeping and dietary employees remained
more or less stable while the number of LPNs and CNAs, whose duty it
is to provide that nursing care, increased as the number of patients
increased.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1178
hotel on the day recognition was granted was closed to
the public and only in the earliest stages of preparation
for serving the public with respect to either accommoda-
tions or dining.”).
Our dissenting colleague contends that a nursing home
is engaged in “normal business operations” when it trains
employees for an upcoming start of operations. Respect-
fully, our colleague’s position is at odds with the words
she interprets. A nursing home is in the business of car-
ing for patients—24/7. Training and setting up shop a
few hours a week in preparation for doing so is simply
not normal operations. Normal operations for a nursing
home ordinarily begin when patients are admitted and the
demands attendant thereto are felt.11
Our colleague also states that a staff must be trained
before patients are admitted. We agree. However, the
point is that the employees and the nursing home here
were not engaged in normal business operations before
opening day because the business of this Respondent is
to care for patients, it is not in the business of running a
training school. Training may be essential to the opera-
tion of its business, but it is not the business itself.
The Respondents argue that Klein’s Golden Manor,
214 NLRB 807 (1974), supports the position that only
the first prong of the Hilton Inn test is necessary. This is
not correct. As the Board made clear in Hilton Inn Al-
bany, supra, and reaffirmed in A.M.A. Leasing, supra at
1024 fn. 7 (last two sentences), the test has two parts.
The first prong takes into account the right of employees
who have already been hired to representation without
undue delay as well as the right of employees who will
be hired in the future to exercise their choice. The sec-
ond prong recognizes the fact that employees are better
able to register their electoral choice when they are actu-
ally engaged in the work for which representation is
sought.
Unlike the Respondents, our dissenting colleague as-
serts that the second part of the test was actually met in
Klein’s, which also involved employees working at a

11 Our dissenting colleague finds support in Hilton Inn for the propo-
sition that “substantial[ly] full scale training and preparation” for a
facility opening constitutes “normal business operations.” While the
Board in Hilton Inn did say that the hotel there was not even engaged in
“substantially full scale training and preparation for its later opening,”
270 NLRB at 1366, the Board was merely stressing how remote from
normal business operations the hotel was at the time of recognition. The
Board in that case stated: “[U]nder the circumstances of this case we
find that the Employer on 4 November was simply not engaged in
normal hotel operations or even substantially full scale training and
preparation for its later opening.” 270 NLRB at 1366. Like the Board
in Hilton Inn, we could say that the Employer here was not even en-
gaged in “substantially full scale training and preparation” at the time
of recognition. But, even if it was, that full scale training and prepara-
tion would not constitute the normal business operation of a nursing
home such as the Respondent Employer’s, i.e., caring for patients.
nursing home before opening day. We disagree. In
Klein’s, the “normal business operations” prong was not
specifically discussed because the General Counsel fo-
cused on the first prong of the test. The General Counsel
claimed, albeit unsuccessfully, that the test of a “substan-
tial and representative complement” of employees was
not met.12 For this obvious reason, in Klein’s “there
[was] little discussion of the employer having engaged in
normal business operations at the time of recognition.”13
Indeed, “the work in preparation for the opening of the
nursing home in that case [was] essentially the same as
the work after [the employer] opened its doors to pa-
tients.”14
By contrast, the General Counsel in the instant case
focuses directly on the “normal business operations”
prong of the test,15 prudentially so. For, as discussed
above, the activities being performed before the nursing
home opened for business on April 15 were not the nor-
mal business operation, viz caring for patients. Before
the opening of the Respondent’s business the employees
were engaged in training and familiarizing themselves
with the facility in preparation for engaging in the busi-
ness of Respondent, and their hours were accordingly
confined. After the opening, the employees were caring
for patients, and their hours were not so confined.
Here, in concluding that the Respondent Employer was
not engaged in “normal business operations” at the time
of recognition, we have balanced the interests of the first
group of employees hired but not yet performing the du-
ties for which they were employed and the interests of
the anticipated full complement of unit employees.
Thus, on the one hand, we have considered that at the
time of recognition the majority of employees hired were
housekeepers and dietary employees engaged in only
limited work activities for limited hours of work. This
factor is instrumental in establishing that the Respondent
Employer was not engaged in normal operations, and
that postponing recognition would have had limited im-
pact on the employees’ immediate terms and conditions
of employment. On the other hand, about the time the
first patient was admitted, a month later, the number of

12 The judge in Klein’s stated that “[t]he thrust of the complaint’s al-
legations remaining for disposition in this case is to the effect that
[r]espondent, in violation of Sec. 8(a)(2) and (1), recognized and en-
tered into a collective bargaining agreement with Local 4 . . . at a
time . . . when [r]espondent did not yet employee a representative com-
plement of employees in that unit.” Klein’s, supra at 808.
13 See A.M.A. Leasing, 283 NLRB 1024 fn. 2.
14 Klein’s, supra at 809, cited in A.M.A. Leasing, id.
15 The complaint in the instant case alleges that the Respondent Em-
ployer’s recognition of the Respondent Union and their subsequent
collective-bargaining agreement violated the Act because at the time of
recognition the Employer “did not employ in the Unit a representative
segment of its ultimate employee complement” and “was not engaged
in its normal business operations.”
ELMHURST CARE CENTER 1179
CNAs and LPNs began to increase while the number of
dietary and housekeeping employees held relatively
steady. In addition, the number of hours worked by the
unit as a whole, and by individual employees, increased
rapidly after the first patient was admitted. Thus, waiting
to grant recognition until the facility had opened would
have increased the number of unit employees participat-
ing in the decision regarding representation while having
minimal impact on those employed earlier.16 Our col-
league’s charge that we are imposing a “paternalistic
rule” is of no moment. We are simply being faithful to
our charge to apply Board law to the facts found. Board
law, as set forth in Hilton Inn, balances the competing
interests and concludes that employees may best decide
their choice regarding representation once an employer is
engaged in its normal business operations, that is, when
employees are actually engaged in the work for which
representation is sought.
In sum, we find that the Respondent Employer was not
engaged in normal operations when recognition was ex-
tended by the Respondent Employer and accepted by the
Respondent Union. Therefore, the recognition was pre-
mature and the collective-bargaining agreement is void.
Accordingly, we find that by recognizing the Respondent
Union, and by executing and maintaining a collective-
bargaining agreement with a union-security clause, the
Respondent Employer violated Section 8(a)(1), (2), and
(3) of the Act, and that by accepting recognition and by
executing and maintaining a collective-bargaining agree-
ment, the Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Elmhurst Care
Center, Queens, New York, its officers, agents, succes-
sors, and assigns, and the Respondent Local 300S, Pro-
duction Service and Sales District, UFCW, its officers,
agents, and representatives, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph A,1(b).
“(b) Maintaining or giving any effect to the collective-
bargaining agreement between Elmhurst Care Center and
Local 300S entered into about March 19, 1999, or any
renewal, extension, or modification thereof unless and
until Local 300S is certified by the Board as the collec-
tive-bargaining representative of such employees; how-
ever, that nothing in this Order shall require any changes

16 An additional advantage of waiting is that it would have increased
the likelihood that the employees would be aware of what their normal
work activity and everyday terms and conditions of employment would
consist of, before making the decision regarding representation.
in wages or other terms and conditions of employment
that may have been established pursuant to the collec-
tive-bargaining agreement.”
2. Substitute the following for paragraph A,2(c).
“(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
3. Substitute the attached notices “Appendix A” and
“Appendix B” for those of the administrative law judge.
MEMBER LIEBMAN, dissenting.
When the Employer recognized the Respondent Union,
54 percent of its ultimate employment complement was
working, in 100 percent of the Employer’s job classifica-
tions. This was a “substantial and representative com-
plement” of workers, easily satisfying the commonly-
used General Extrusion guideline, as the judge acknowl-
edged.1 Permitting recognition, then, would adequately
protect the interest of later-hired employees in having a
voice in selecting their representative, while promoting
the interest of current employees in promptly securing
representation. The majority nevertheless finds a viola-
tion of Section 8(a)(2), after determining that the em-
ployer was not yet engaged in “normal business opera-
tions.”
As I will explain, that requirement—which the Board
has discarded in representation cases, but retained in un-
fair labor practice cases—serves no clear statutory pur-
pose. In any event, the requirement was satisfied here.
While the Employer’s facility, a nursing home, was not
yet open for business, some employees were effectively
doing their jobs already (housekeepers and dietary em-
ployees), while others (a Licensed Practical Nurse (LPN)
and Certified Nurses Aides (CNAs)) were in substantial
training, in preparation for the home’s opening.
I.
The majority correctly points out that the Board has
come to apply a two-part test in unfair labor practice
cases:

1 General Extrusion Co., 121 NLRB 1165, 1167 (1958) (collective-
bargaining agreement will bar representation election “if at least 30
percent of the complement employed at the time of the hearing had
been employed at the time the contract was executed, and 50 percent of
the job classifications in existence at the time of the hearing were in
existence at the time the contract was executed”). The Board looks to
General Extrusion, a representation case, for guidance in unfair labor
practice cases involving premature recognition of a union. See, e.g.,
Hilton Inn Albany, 270 NLRB 1364, 1365 fn. 10 (1984).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1180
At the time of the recognition (1) an employer must
employ a substantial and representative complement of
its projected work force, that is, the jobs or job classifi-
cations designated for the operation must be substan-
tially filled, and (2) the employer must be engaged in
normal business operations.
Hilton Inn Albany, supra, 270 NLRB at 1365 (footnote
omitted). The majority declines to address the first re-
quirement and instead decides the case based on the second.
But the second part of the test is arguably superfluous,
as well as difficult to apply. Indeed, the Board has re-
jected it in the context of representation cases posing
essentially the same premature-recognition issue as do
unfair labor practice cases under Section 8(a)(2)2—which
means, of course, that under the facts here, the Board
would dismiss a representation petition by the Charging
Party Union, as barred by the existing collective-
bargaining agreement between the Employer and the
Respondent Union.
Apart from that anomalous difference between repre-
sentation cases and unfair labor practice cases,3 it seems
clear that, at a minimum, the second part of the test must
be grounded in the balancing of interests (current em-
ployees versus future employees) implicated in prema-
ture-recognition cases. In this case, the majority not only
finds it unnecessary to decide whether a substantial and
representative employee complement was in place, but
also fails persuasively to explain how its conclusion with
respect to “normal business operations” reflects the bal-
ancing of interests. That balance is all about which em-
ployees may decide the question of union representation,
not what employees are doing at the time of recognition
(provided they occupy the relevant job classifications).
The majority cites no decision in which the Board has
found that a substantial and relevant complement of em-
ployees was in place at the time of recognition, and yet
has concluded that recognition was premature.4
The majority states that the reasoning of Hilton Inn Al-
bany in support of a second prong is that “employees are
better able to register their electoral choice when they are
actually engaged in the work for which representation is

2 See General Extrusion, supra, 121 NLRB at 1167 (establishing
complement test and observing that it will “simplify the heretofore
existing rules by eliminating contract-bar issues based upon whether
operations had begun or had assumed normal proportions”).
3 The majority makes no attempt to defend the distinction. The sta-
bility of a bargaining relationship is implicated in the unfair labor prac-
tice context as well in the representation context. The underlying ques-
tion in both contexts is whether, and why, to permit the existing rela-
tionship to be challenged, either through an unfair labor practice charge
or through a representation petition.
4 In both Hilton Inn Albany, supra, and A.M.A. Leasing, 283 NLRB
1017 (1987), cited by the majority, neither part of the two-part test was
satisfied.
sought.” Precisely what this rationale means is unclear:
it was not spelled out by the Hilton Inn Board, nor do my
colleagues fully explain it. The majority appears to sug-
gest (see fn. 16) that employees should not be permitted
to choose union representation until they have gained
experience working under “normal business operations.”
There is no clear basis in the Act for such a paternalistic
rule, which is unworkable in any case. On the majority’s
rationale, surely some substantial period of time should
be required before employees are deemed to know
enough to decide whether to unionize. Yet no such pe-
riod is actually required—one day of “normal business
operations” suffices—and determining the length of that
period would be an arbitrary exercise.
In short, the “normal business operations” test, which
survives only in the unfair labor practice context, is of
doubtful value and should be revisited by the Board.
II.
That issue aside, the majority’s application of the
“normal business operations” test in the circumstances of
this case is also flawed.
The majority claims that it is merely following prece-
dent. That is hardly the case. First, the majority neglects
the clear implication of Hilton Inn Albany that substantial
full scale training and preparation before opening day
may constitute “normal business operations.” 270 NLRB
at 1366. Applying a prerequisite that an employer must
be open to the public (and not in pre-opening training of
its employees), the majority rejects any interpretation of
Hilton Inn Albany that the second prong of the test can
be met by substantial full scale training and preparation.
A fair reading of Hilton Inn Albany suggests otherwise.
Second, the majority gives short shrift to precedent
most similar to the present case. Thus, in Klein’s Golden
Manor, 214 NLRB 807 (1974), a senior-citizens home
recognized a union 3 weeks before it opened its doors,
and while training its work force. The home had no resi-
dents or patients and employees were engaged in pre-
paratory training. And, just as in the present case, the
home employed a substantial and representative com-
plement of employees at the time of recognition. The
recognition was deemed lawful.
The majority claims that Klein’s Golden Manor does
not stand for the proposition that the “normal business
operations” prong was met in that case. But, the majority
concedes, as it must, that the training work in Klein’s
Golden Manor—in preparation for the facility’s open-
ing—was essentially the same as the work after it opened
its doors to patients. This precedent would seem to belie
the notion that the “normal business operations” prong
can only be satisfied when the doors to a facility have
opened and patients are on hand. Indeed, my colleagues
ELMHURST CARE CENTER 1181
do not assert that Klein’s Golden Manor was wrongly
decided.5 Instead, they assert that the present case is
distinguishable because the employees here were en-
gaged in “training and familiarization” and there were no
patients. But the same was true in Klein’s Golden
Manor. In both cases, there were no patients at the time
of recognition and employees were engaged essentially
in the same type of work before and after opening day.
Further, if substantial full scale training and prepara-
tion is insufficient to constitute normal business opera-
tions under the majority’s view of Hilton Inn Albany,
then the result reached by the Board in Klein’s Golden
Manor is irreconcilable with the result reached here as
the majority should acknowledge.6 Here, the Board “has
not adopted a reasoned approach because it has failed to
distinguish adequately its prior decisions.” Brewers
Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 47
(D.C. Cir. 2005).
As noted, in both Klein’s Golden Manor and the pre-
sent case, there were no patients or residents at the time
of recognition. Obviously, before patients are admitted,
kitchen and housekeeping personnel, for example, who
are in training, are not actually cooking for and cleaning
up after patients. They are doing the same work they
will be doing later nevertheless. There is no basis in law,
policy, or logic to require face-to-face contact with a live
patient—on opening day—to give effect to the desires of
a substantial and representative complement of employ-
ees. Taken to its logical conclusion, the majority’s ap-
parent insistence on hands-on contact between employ-
ees and customers would foreclose recognition in virtu-
ally any service establishment during the training proc-
ess.

5 The majority attempts to minimize the impact of Klein’s Golden
Manor by asserting that the complaint there was more narrow than the
complaint here. If my colleagues intend to suggest that the Board did
not implicitly make a finding pertinent to the “normal business opera-
tions” prong in that case, they are wrong. In A.M.A. Leasing, supra,
cited by the majority, the Board expressly found that, in Klein’s Golden
Manor, “the Board viewed” the preparatory work as sufficient to show
normal business operations. 283 NLRB at 1024 fn. 7. Moreover, in-
asmuch as both prongs must be satisfied to meet the prevailing stan-
dard, the Board presumably would not have dismissed the complaint in
Klein’s Golden Manor if the “normal business operations” prong had
not been satisfied.
6 With regard to the continuity of preopening and postopening work
under the prevailing “normal business operations” prong, A.M.A. Leas-
ing is instructive. In that case, a meat processing business hired clean-
up and painting employees to render a plant operational. The employer
there did not tell employees what their jobs would be after the initial
work was completed, the employees no longer performed the kind of
cleanup they did beforehand, and the employer did not train these em-
ployees for meat processing work. Once the plant became a meat proc-
essing facility, the jobs of these employees changed substantially. 283
NLRB at 1023–1024. In the present case and in Klein’s Golden Manor,
there is continuity between the training and the tasks to be performed
after opening day.
Further, it makes even less sense to limit “normal
business operations” to the opening date of the nursing
home when we consider that state regulations here re-
quire that a patient floor in a nursing home must be
staffed before any patients can be admitted. As a practi-
cal matter, staff must be trained and in place before the
home can legally open its doors to patients. These pre-
paratory activities are just as much normal business op-
erations, at least in light of the Board’s concerns, as the
resident-care activities that followed the opening of the
home in Klein’s Golden Manor.
Finally, the majority argues that fluctuations in the Re-
spondent Employer’s work force, pertaining to the com-
position of employees within classifications, and the
number of hours worked by them changed after patients
were admitted. But the issue here is continuity of the
work force, not how many hours of work were available.
If the majority is of the view that the Respondent Em-
ployer’s hiring patterns with regard to LPNs and CNAs
are important, that inquiry should properly be considered
under the first prong of the Hilton Inn Albany standard.
Instead, the majority bypasses that prong entirely and
grafts onto the second prong an inquiry that seems to
hold some unit classifications in higher regard than other
classifications. It is worth noting, again, that 100 percent
of the Respondent Employer’s job classifications were in
place at the time of recognition, as well as 54 percent of
the eventual employee complement. Fluctuations within
those classifications, as well as increased work hours as
the business takes root, are not a basis to repudiate a vol-
untary bargaining relationship chosen by that work force
and embraced by their employer.
III.
If there are good reasons why unions and nursing-
home employers who wish to enter into voluntary recog-
nition agreements must wait until the doors are open, the
majority has failed to offer them. Accordingly, I would
find that the Employer’s recognition of the Respondent
Union was lawful, and I would dismiss the complaint.
APPENDIX A
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1182
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT recognize or contract with Local 300S,
Production, Service and Sales District Council, UFCW,
as the bargaining representative of our employees, until it
has been certified as such representative by the Board.
WE WILL NOT maintain or give effect to our March 19,
1999 contract with Local 300S or to any renewal, exten-
sion, or modification thereof, unless and until Local 300S
is certified by the Board as the collective-bargaining rep-
resentative of our employees; but we are not required to
make changes in wages or other terms and conditions of
employment that may have been established pursuant to
the collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition from
Local 300S as the collective-bargaining representative of
our employees.
WE WILL, jointly and severally with Local 300S, reim-
burse, with interest, all our present and former employees
for all initiation fees and dues paid by them or withheld
from them pursuant to the union-security clause and the
dues-checkoff clause in the March 19, 1999 contract.
However, reimbursement will not extend to those em-
ployees who voluntarily joined Local 300S prior to
March 19, 1999.
ELMHURST CARE CENTER
APPENDIX B
NOTICE TO MEMBERS
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT act as the exclusive bargaining represen-
tative of any employees of Elmhurst Care Center unless
and until we have demonstrated our majority status and
have been certified by the Board.
WE WILL NOT maintain or give effect to the March 19,
1999 contract between Elmhurst Care Center and us or to
any renewal, extension or modification thereof.
WE WILL NOT in any like or related manner restrain or
coerce the employees of Elmhurst Care Center in the
exercise of the rights guaranteed them by Section 7 of the
Act, except to the extent that such rights may be affected
by an agreement authorized in Section 8(a)(3) of the Act.
WE WILL, jointly and severally with Elmhurst Care
Center, reimburse, with interest, all present and former
employees of Elmhurst Care Center for all initiation fees
and dues paid by them or withheld from them pursuant to
the union-security clause and the dues-checkoff clause in
the March 19, 1999 contract. However, reimbursement
will not extend to those employees who voluntarily
joined Local 300S prior to March 19, 1999.
LOCAL 300S, PRODUCTION SERVICE AND SALES
DISTRICT COUNCIL, UFCW
Joanna Piepgrass, Esq., for the General Counsel.
Morris Tuchman, Esq., for the Respondent Employer.
Bruce J. Cooper, Esq., for the Respondent Union.
Eric J. LaRuffa, Esq. (Office of Richard M. Greenspan), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on October 12, 1999,1 in New York, New
York. The consolidated complaint, which issued on July 8, and
was based on unfair labor practice charges and amended
charges that were filed by Local 1115, Service Employees In-
ternational Union, AFL–CIO (the Union), on April 9 and July
7, alleges that on or about March 7, Elmhurst Care Center (Re-
spondent Employer), recognized Local 300S, Production, Ser-
vice, and Sales District Council, UFCW, AFL–CIO, CLC (Re-
spondent Union and/or Local 300S), and on or about March 19,
the Respondent Employer entered into a collective-bargaining
agreement with the Respondent Union covering certain of its
employees at a time that the Respondent Employer did not
employ in the unit a representative segment of its ultimate em-
ployee complement and was not engaged in its normal business
operations. It is alleged that by this conduct the Respondent
Employer violated Section 8(a)(1), (2), and (3) of the Act and
that the Respondent Union violated Section 8(b)(1)(A) and (2)
of the Act. The record herein was established almost entirely
through stipulations.

1 Unless indicated otherwise, all dates referred to relate to the year
1999.
ELMHURST CARE CENTER 1183
FINDINGS OF FACT
I. JURISDICTION
The Respondent Employer admits, and I find, that it has been
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and a health care institution
within the meaning of Section 2(14) of the Act.
II. LABOR ORGANIZATION STATUS
The Respondent Employer admits, and I find, that the Union
and the Respondent Union are each labor organizations within
the meaning of Section 2(5) of the Act.
III. THE FACTS
It should initially be noted that the sole allegations herein are
that the Respondent Employer recognized, and entered into a
collective-bargaining agreement with Local 300S at a time
when the Respondent Employer did not employ in the unit a
representative segment of its ultimate employee complement
and was not engaged in its normal business operations. There
is no allegation herein of tainted or coerced authorization cards
affecting the Respondent Union’s majority status.
The facility involved herein is a licensed skilled nursing
residence located in Queens, New York. The facility contains
six patient floors and is capable of caring for 240 patients. The
bargaining unit at the facility is composed of all full-time and
part-time LPNs, CNAs, housekeepers, and dietary technicians,
excluding guards and supervisors as defined in the Act. State
regulations require that a patient floor be fully staffed prior to
the admission of any patients on that floor. The first patient
was admitted on April 15. Subsequently, the resident census
increased as follows: by June 23–52 and by July 8–69. On July
27, the Respondent opened two additional floors at the facility,
and by August 1 there were 87 residents, by September 1, 107
residents and by October 6, there were 121 residents. By Octo-
ber 11, four of the six patient floors were operating with pa-
tients.
Although the first patient was not admitted until April 15, the
Respondent began hiring and paying employees in February for
training purposes and to ensure that by the time patients were
admitted, the facility was operating smoothly. The first em-
ployees who were hired in February worked one shift and oper-
ated and maintained the boilers and heating equipment at the
facility. During the payroll period March 7–19, the Respondent
also employed housekeepers who cleaned floors and bath-
rooms, emptied waste containers, and replenished supplies; the
CNAs who were employed at that time were trained on the
Respondent’s policies and procedures, and set up patient charts,
made beds, and performed all functions except hands-on nurs-
ing care. Dietary employees who were employed during this
period cleaned the kitchen, set up storage rooms, cooked meals
for staff, and were trained in tray cart setup, and equipment.
The employees who were employed during March were also
paid for 3.5 to 5 hours of in-service training covering patient
abuse, resident rights, fire and safety, accident prevention, eld-
erly needs, and infection control. The number and job classifi-
cations of the unit employees employed at the facility from
March through September is as follows:
Payroll
Period LPNs CNAs Housekeeping Dietary Total
3/7–3/20 1 16 21 9 47
3/21–4/3 1 16 18 9 44
3/28–4/10 1 28 14 11 54
4/11–4/24 8 23 18 14 63
4/25–5/8 8 23 18 14 63
5/9–5/22 7 22 19 14 62
5/23–6/5 10 31 18 10 69
6/6–6/19 11 33 20 11 55
6/20–7/3 10 37 0 12 59
7/4–7/17 10 46 0 13 69
7/19–7/25 10 52 0 13 75
8/1–8/14 15 60 0 14 89
8/15–8/28 16 54 0 13 83
8/29–9/11 17 59 0 11 87
9/12–9/26 15 61 0 11 87
When all the floors are opened and occupied, the number of em-
ployees in the unit is projected to be 110.
Local 300S made a demand for recognition on the Respon-
dent Employer on March 5; a card check of the Local 300S
authorization cards was conducted by Jay Nadelbach, arbitrator,
on March 7. By letter dated March 8 to the Respondent Em-
ployer and the Respondent Union Nadelbach certified that the
Respondent Union represented a majority of the employees at
the facility, although the letter does not give a breakdown of the
number of employees employed at the facility on that date or
the number of authorization cards submitted by the Respondent
Union. On or about March 12, the Respondent Employer
granted recognition to Local 300S and on March 19, the Re-
spondent Employer and Local 300S executed a collective-
bargaining agreement effective March 12, 1999, to March 11,
2003. The record establishes that Local 300S submitted 47
authorization cards to Nadelbach for the March 7 card check; 2
are undated. The rest are dated March 7 or earlier. Of these 47
card signers, 93 do not appear on the Respondent Employer’s
payroll list for the period March 7–20, which list was given to
Nadelbach for use in his card check. The remaining 38 card
signers worked during the 2-week pay period March 7–20 from
5 hours to 72-1/2 hours, for an average of about 17 hours. The
Respondent’s payroll records for the pay period through Sep-
tember 26 establishes the employment longevity of the card

2 Beginning with this pay period, the housekeeping employees are no
longer included in the payroll list that is included in the stipulated facts.
Subsequent to the receipt of briefs herein, counsel for the Respondent
Employer, by letter dated December 7, notified me and fellow counsel
that beginning in late July the Respondent Employer subcontracted the
work of the housekeeping department at the facility. However, counsel
does not explain what happened to the housekeeping employees from
early June until late July. In the absence of these figures, based princi-
pally on the number of other employees and residents during this latter
period, I find that there were 20 housekeeping employees for the pay
periods June 6 through July 25, and 30 housekeeping employees for the
pay periods from August 1 through September 26.
3 Altemary Francois, Paulette Laird, Benonie Chery, Dieufils Brice,
Natascha Dockery, Suzette Fagan, Marie Louise Joseph, Renee Beliza-
ire, and Clemene Vertus.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
signers: 10 card signers4 worked the pay period commencing
March 7 and never again; 215 of the card signers worked, at
least, through the payroll period May 9–22; 96 worked every
pay period, or almost every pay period, from March 7 through
September 26; 1, Gusna Dockery, worked 5-1/2 hours the pay
period commencing March 7, and did not work for the Respon-
dent Employer again until the work week commencing July 19.
From that date through September 26, he worked on almost a
full-time basis; and Patricia Scott, who worked 8 hours for the
pay period ending March 28, and did not work for the Respon-
dent Employer again until the work week ending July 25, and
then worked continuously for the Respondent Employer, at
least, through the pay period ending September 26.
IV. ANALYSIS
As stated above, the Respondent Employer recognized Local
300S on March 12 and entered into a collective-bargaining
agreement with Local 300S on March 19, based upon the card
check which showed that a majority of the Respondent’s em-
ployees who were employed at the time had signed authoriza-
tion cards for Local 300S. Counsel for the General Counsel, in
arguing that these actions violated Section 8(a)(1), (2), and (3)
and Section 8(b)(1)(A) and (2) of the Act, does not allege any
irregularities in the authorization cards or the card check that
resulted in the recognition of the Respondent Union, but rather
alleges that at the time of the recognition and the execution of
the agreement the Respondent Employer did not employ a rep-
resentative segment of its anticipated employee complement
and was not engaged in its normal business operations.
In determining whether recognition was premature, the
Board, in Hilton Inn Albany, 270 NLRB 1364, 1365 (1984),
relies upon a twofold rule:
At the time of recognition (1) an employer must employ a
substantial and representative complement of its projected
workforce, that is, the jobs or job classifications designated
for the operation must be substantially filled, and (2) the em-
ployer must be engaged in normal business operations. The
Board has not established any mathematical formula or any
per se rule for resolving the issue of premature recognition but
has evaluated the facts in each case to decide whether em-
ployees realistically have had an opportunity to select a bar-
gaining representative. Although not determinative in an un-
fair labor practice case the Board has looked for guidance to
the test set forth in General Extrusion,7 121 NLRB 1165.

4 Marie Belhomme, Ronald Boone, Lance Bradley, Betty Dar-
dignacs, Natasha Denny, Bari Johnson, Marita Murphy, Kowsilla Per-
saud, Eddy Charles Pierre, and Gwendolyn Spence.
5 Bibi Jaikaran, Ella Johnson, Ivrose Guerrier, Tanbir Ahmed,
Radika Appadoo, Jean Barreau, Vanice Blackwood, Dieufils Brice,
Chenier Pierre (or Pierre Chanier), Miryam Fernandez, Romdhanie
Nauth, Jacque Pierre Louis, Dawatto Ramsammy, Talaimay Sawh,
Martine Samedi-Azor, Bibi Shabbeer, Margaret Simpson, Simonis
Yvon, Barrington Stewart, Juliet Thomas, and Gloria Sibbles.
6 Jaikaran, Guerrier, Blackwood, Nauth, Ramsammy, Sawh, Shab-
beer, Thomas, and Viran.
7 In General Extrusion, a representation matter, the Board found that
a contract would bar an election if, at the time of execution as com-
pared to the hearing date, the employer employed 30 percent of its
employees in 50 percent of the job classifications.
See also A.M.A. Leasing, Ltd., 283 NLRB 1017, 1023 (1987).
At the time of recognition herein the Respondent Employer
employed approximately 47 unit employees in all the job classi-
fications for training purposes; since there were no residents at
the facility at that time; these employees were there solely to
learn the operational and safety rules at the facility. Beginning
on April 15, when the Respondent Employer admitted its first
resident, the employees had to engage in actual patient care,
and the number of employees increased. By late September or
early October, when the facility had about 120 residents, it
employed 117 unit employees, including my estimate of the
number of housekeeping employees. Additionally, the number
of LPNs and CNAs, the actual care givers, increased from 1 to
15 and from 16 to 61 respectively for the payroll periods March
7–20, and September 12–26.
Under a strict interpretation of the General Extrusion rule,
the Respondent Employer has satisfied the first requirement:
there were employees employed in all job classifications during
that first pay period, and, at that time, the Respondent Em-
ployer employed approximately 40 percent of the unit employ-
ees who were employed in late September or early October.
However, as the Board stated in Ten Eyck, supra, and Herman
Bros., 264 NLRB 439, 440–441 (1982), this is not meant to be
a per se rule or a mathematical formula, and the Board, in Her-
man Bros. stated: “. . . in deciding whether recognition has been
improperly extended, has attempted to protect the rights of
employees who are working, as well as those who were to
work in the future.” (Emphasis added.) In this regard, it should
be noted that only about 25 percent of the unit employees who
signed authorization cards for Local 300S in March were still
employed by the Respondent Employer at the end of Septem-
ber, and only about 10 percent of the unit employees at the end
of September had signed authorization cards for Local 300S in
March. Further, I find the second part of the test has not been
satisfied herein. At the time that the Respondent Employer
recognized Local 300S there were no residents at the facility; in
fact, the first resident was not admitted until 5 weeks later.
This is not the normal operation of the facility. The normal
operation is caring for the facility’s residents; at the time in
question the employees were being trained for, and preparing
for, the facility’s normal operation. Flatbush Manor Care Cen-
ter, 287 NLRB 457 (1987); Ten Eyck, supra.
Klein’s Golden Manor, 214 NLRB 807 (1974), which is
cited in the briefs herein, is clearly distinguishable from the
instant matter. In Klein’s, as in the instant matter, it was alleged
that at the time of recognition and the execution of a contract 8
days later, the Employer did not yet employ a representative
complement of employees in the bargaining unit for which it
accorded the Union recognition. The Employer therein em-
ployed 18 employees at the time of recognition and the execu-
tion of the contract. During the first week that it was open for
business it employed 20 unit employees. Therefore, 90 percent
of the unit employees had been employed by the Employer at
the time of recognition and the execution of the contract, and
this percentage remained the same for the next 3 months of the
Employer’s operation. During the balance of the year, this
percentage was 65 percent. For these reasons the judge found
that there was no premature recognition, and dismissed the
ELMHURST CARE CENTER 1185
complaint. The 65 percent in Klein’s can clearly be distin-
guished from the instant matter.
I therefore find that by recognizing Local 300S, and by en-
tering into a collective-bargaining agreement which contained a
union security clause, the Respondent Employer violated Sec-
tion 8(a)(1), (2), and (3) of the Act and the Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act and is a health care institu-
tion within the meaning of Section 2(14) of the Act.
2. The Union and the Respondent Union are each labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. By recognizing the Respondent Union on or about March
12 as the exclusive collective-bargaining representative of its
employees, and by executing a collective-bargaining agreement
with the Respondent Union on or about March 19, the Respon-
dent Employer has unlawfully assisted and supported the Re-
spondent Union and has thereby violated Section 8(a)(1) and
(2) of the Act.
4. By accepting recognition as the exclusive bargaining rep-
resentative of the Respondent Employer’s employees, and by
executing and maintaining the March 19 collective-bargaining
agreement, the Respondent Union has restrained and coerced
the employees in the exercise of rights guaranteed them by
Section 7 of the Act in violation of Section 8(b)(1)(A) of the
Act.
5. By maintaining and enforcing the union-security and
dues-checkoff provisions of the March 19 collective-bargaining
agreement, the Respondent Employer has violated Section
8(a)(1) and (3) of the Act and the Respondent Union has vio-
lated Section 8(b)(2) of the Act.
6. These unfair labor practices are unfair labor practices
within the meaning of Section 2(2) and (7) of the Act.
REMEDY
Having found that the Respondent Employer has engaged in
unfair labor practices within the meaning of Section 8(a)(1),
(2), and (3) of the Act and that the Respondent Union has en-
gaged in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act, I shall recommend that each Re-
spondent be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of
the Act.
I recommend that the Respondent Employer be ordered to
withdraw recognition from the Respondent Union and the latter
to cease accepting recognition from the former unless certified
by the Board. I also recommend that both Respondents be
ordered to cease giving effect to their March 19, 1999 collec-
tive-bargaining agreement, including all renewals, extensions,
and modifications, and to cancel it entirely. I further recom-
mend that the Respondent Employer and the Respondent Union
be ordered jointly and severally to reimburse, with interest, all
present and former employees for all initiation fees, dues, and
other moneys paid by them or withheld from them pursuant to
the terms of the union-security and dues-checkoff provisions of
the March 19 collective-bargaining agreement. However, re-
imbursement shall not extend to those employees who voluntar-
ily joined and became members of the Respondent Union prior
to March 19.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
A. Respondent Elmhurst Care Center, Elmhurst, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Recognizing Local 300S as the collective-bargaining rep-
resentative of its employees unless and until it is certified by
the Board as the collective-bargaining representative of such
employees pursuant to Section 9(c) of the Act.
(b) Maintaining or giving any effect to the collective-
bargaining agreement between Elmhurst Care Center and Local
300S entered into on or about March 19, 1999, or any renewal,
extension or modification thereof unless and until Local 300S is
certified by the Board as the collective-bargaining representa-
tive of such employees; provided, however, that nothing in this
recommended Order shall authorize or require any changes in
wages or other terms and conditions of employment that may
have been established pursuant to the collective-bargaining
agreement.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Withdraw and withhold all recognition from Local 300S
as the exclusive collective-bargaining representative of its em-
ployees unless and until it has been duly certified by the Board
as the exclusive representative of such employees.
(b) Jointly and severally with Local 300S reimburse with in-
terest all present and former employees for all initiation fees,
dues, and other moneys paid by them or withheld from them
pursuant to the terms of the dues check-off and union-security
clauses of the March 19 collective-bargaining agreement.
However, reimbursement does not extend to those employees
who voluntarily joined and became members of Local 300S
prior to March 19, 1999.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records, and reports and all other records necessary to
analyze the amounts of reimbursement due herein.
(d) Post at its Elmhurst, New York facility copies of the at-
tached notice marked “Appendix A.”9 Copies of the notice, on
forms provided by the Regional Director for Region 29, after
being signed by the Respondent Employer’s authorized repre-

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
9 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
sentative, shall be posted immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken to ensure that the notices are
not altered, defaced or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent Employer has gone out of business or closed the facil-
ity involved in these proceedings, it shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since March 19, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region, attesting to the steps that it
has taken to comply.
B. The Respondent, Local 300S, Production, Service, and
Sales District Council, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Accepting recognition from, and executing a collective-
bargaining agreement with, it when Elmhurst Care Center does
not employ a representative number of its ultimate complement
of unit employees and before it is engaged in its normal busi-
ness operation.
(b) Giving effect to the March 19, 1999 collective-bargaining
agreement between the Respondent Elmhurst Care Center and
the Respondent Local 300S, or to any extension, renewal or
modification thereof.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of their rights as guaranteed in Section 7
of the Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Jointly and severally with Elmhurst Care Center reim-
burse with interest all present and former employees for all
initiation fees, dues, and other moneys paid by them or with-
held from them pursuant to the terms of the dues-checkoff and
union-security clauses of the March 19, 1999 collective-
bargaining agreement. However, reimbursement does not ex-
tend to those employees who voluntarily joined and became
members of Local 300S prior to March 19, 1999.
(b) Post at its business office and other places where notices
to employees are customarily posted copies of the attached
notice marked “Appendix B.”10 Copies of the notice, on forms
provided by the Regional Director for Region 29, after being
signed by an authorized representative of Local 300S, shall be
posted immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Furnish the Regional Director with signed copies of the
notice for posting by Elmhurst Care Center where notices to
employees are customarily posted. Copies of the notice, to be
furnished to the Regional Director, shall be signed and forth-
with returned to the Regional Director.
(d) Within 21 days after service by the Region, file with the
Region a sworn certification, of a responsible official on a form
provided by the Region, attesting to the steps that it has taken to
comply.

10 See fn. 9, supra.