Green Oak Manor

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 658 (N.L.R.B. 1974)

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Faye Nursing Home, Inc., d/b/a Green Oak Manor adopt his recommended Order.
and Local 1199 Mass., National Union of Hospital
& Nursing Home Employees , RWDSU, AFL-CIO.
Case 1-CA-8697
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On August 28, 1974, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and supporting briefs, including a brief which he
had filed with the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions' and briefs
and has decided to affirm the rulings, findings,' and
conclusions3 of the Administrative Law Judge and to
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In asserting jurisdiction herein, the Administrative Law Judge relied
solely on the Board's nonretail standard. Our acceptance of jurisdiction
herein is based, rather, on the admitted allegations of the complaint that
Respondent meets our standards for assertion of jurisdiction over proprie-
tary nursing homes. Thus, the complaint alleged and Respondent's answer
admitted that Respondent's annual volume of business is in excess of
$100,000. University Nursing Home, Inc., 168 NLRB 263 (1967).
3 We note the apparently inadvertent errors of the Administrative Law
Judge in stating in sec. III,A, of his Decision that the Union was certified
as the bargaining representative of Respondent's employees rather than,
those of its predecessor, Green Oak Manor, Inc., and in sec. III,B, thereof,
that a bargaining session was held on October 10. These errors, however,
do not affect our decision.
We note that the Administrative Law Judge's statement of legal principles
quoted immediately following his citation of Celanese Corporation of
America, 95 NLRB 664 (1951), and Laystrom Manufacturing Co., 151
NLRB 1482 (1965), in the analysis portion of his Decision, does not appear
in either of those Board cases as he asserts, but, rather, emanates from the
court's decision in Lodges 1746 and 743, International Association ofMa-
chinists and Aerospace Workers, AFL-CIO [ United Aircraft Corporation] v.
N.L.R.B., 416 F.2d 809,811 (C.A.D.C., 1969). See also Member Kennedy's
dissent in Automated Business Systems, a Division of Litton Business Sys-
tems, Inc., a. Subsidiary of Litton Industries, Inc., 205 NLRB 532 (1973);
enforcement denied 497 F.2d 262 (C.A. 6, 1974).
Furthermore, the Administrative Law Judge erred in stating the govern-
ing Board law to be that, after an employer establishes objective grounds for
doubting the union's continuing majority status, "the burden of going for-
ward with the evidence shifts to the General Counsel to prove that, on the
critical date . . . the Union in fact represented a majority of the employees."
This statement is not an accurate reflection of the Board majority's position,
which is clearly set forth in Automated Business Systems, supra; and Bar-
tenders, Hotel, Motel and Restaurant Employers Bargaining Association of
Pocatello, Idaho and its Employer-Members, 213 NLRB No. 74 (1974).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board. adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
Nevertheless, we agree with the Administrative Law Judge's dismissal of the
complaint here. For the record amply supports his findings that Respon-
dent's withdrawal of recognition and refusal to bargain was based on suffi-
cient objective considerations to support a serious doubt of the Union's
continued majority status and that, therefore, no violation of Sec. 8(a)(5) of
the Act has been established. In these circumstances, Members Fanning and
Penello consider it wholly immaterial whether or not the Union in fact
continued to enjoy majority support among the unit employees. See United
Supermarkets, Inc., 214 NLRB No. 142 (1974), fn. 10. Chairman Miller, on
the other hand, although entertaining some doubts in this area, finds it
unnecessary in this case to decide whether the burden shifted to the General
Counsel since the General Counsel, in any event, made no attempt to prove
that the Union in fact retained majority status.
In agreeing with the Administrative Law Judge that Respondent did not
act unlawfully when it withdrew recognition and declined to bargain with
the Union, we do not rely significantly on the fact that Respondent also filed
an RM petition. The mere filing of such a petition is not evidence of an
employer's good faith. San Luis Obispo County and Northern Santa Barbara
County Restaurant and Tavern Association, 196 NLRB 1082, 1086 (1972).
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon a
charge of unfair labor practices filed on November 17, 1972,
by Local 1199 Mass., National Union of Hospital & Nursing
Home Employees, RWDSU, AFL-CIO, the Charging Party,
herein called the Union, against Faye Nursing Home, Inc.,
d/b/a Green Oak Manor, herein called the Respondent, the
General Counsel for the National Labor Relations Board
issued a complaint against Respondent on March 29, 1974,
alleging that Respondent has refused to bargain in good faith
with the Union by refusing to meet with and/or bargain with
the Union on and subsequent to November 13, 1972, in viola-
tion of Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended, herein called the
Act. Respondent timely filed an answer denying the alleged
unlawful conduct.
A hearing in the above matter was held before me at Bos-
ton, Massachusetts, on May 30, 1974. A brief has been re-
ceived from counsel for the Respondent and has been care-
fully considered.
Upon the entire record in this case and from my observa-
tion of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the Commonwealth of Massachusetts,
215 NLRB No. 112
GREEN OAK MANOR
with its principal office and place of business at 947 North
Main Street in the city of Brockton and Commonwealth of
Massachusetts (herein called the Brockton location), where it
is now and continuously has been engaged in the operation
of a proprietary nursing home In the course of conducting
its business operations dunng the past 12 months, a represen-
tative period, Respondent has caused large quantities of
medical supplies, foodstuffs, and related products used by it
in the operation of its proprietary nursing home to be pur-
chased and transported in interstate commerce from and
through various States of the United States other than the
Commonwealth of Massachusetts, and the value of said pro-
ducts in transit was in excess of $50,000.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer does not deny, and I
find, upon the evidence of record that Local 1199 Mass.,
National Union of Hospital & Nursing Home Employees,
RWDSU, AFL-CIO, is now and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICE
A. Introduction
On July 2, 1971, Local 1199 Mass, National Union of
Hospital & Nursing Home Employees, RWDSU,
AFL-CIO, herein called the Union, was certified to represent
a unit of employees of the Faye Nursing Home, Inc, d/b/a
Green Oak Manor, hereinafter referred to as the Respondent
or the Home. Shortly thereafter, on March 6, 1972, the Re-
spondent and the Union negotiated a collective -bargaining
agreement for a period of 1 year, effective November 10,
1971, to November 10, 1972. In June 1972, during the term
of the contract, ownership of the Home succeeded to the
present Respondent, which thereafter recognized and
adopted said contract in effect at the time.
During the last few months of the existing bargaining con-
tract, the Respondent and the Union met in three bargaining
sessions in an effort to negotiate a bargaining contract for the
future. However, during this period, on November 13, the
Respondent alleges that due to an outgrowth of considerable
unrest and dissatisfaction among the employees with respect
to the retention of the Union as their collective-bargaining
representative, Respondent did in fact refuse to collectively
bargain with the Union on the grounds that it doubted the
Union represented a majority of its employees. On November
13, the Respondent unilaterally terminated further bargain-
ing sessions with the Union and thereafter filed an RM peti-
tion for its official removal. The Union construed the Respon-
dent's action as a refusal to bargain and thereafter filed such
charge against Respondent on November 17, 1972.'
I Hereafter, all dates will refer to the year 1972 unless specified otherwise,
and the facts set forth above are undisputed in the record
Issues
659
The principal issues are whether the Respondent had suffi-
cient objective considerations on November 13, 1972, upon
which to support a good-faith doubt that the Union still
enjoyed its majority status subsequent to the expiration of its
contract on November 10, 1972; and whether Respondent's
unilateral termination of the collective-bargaining sessions on
November 13 constituted a refusal to bargain in violation of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
B. Collective Bargaining and Unrest Among Employees
After ownership of the Home succeeded to the present
Respondent in June 1972, Respondent employed Mrs
Theresa Dzialo as administrator and director of nursing in
September. Director Dzialo credibly testified that she was a
visiting public nurse until she was employed by Respondent
September 5, 1972; that her duties included employing, dis-
charging, and supervising nurses and overseeing nursing ser-
vices of a 24-hour (3 shifts) service nursing home; that she
works from 9 a.m to 5 p in but she sees all employees every
Thursday, which is payday; that as bargaining representative
for the Respondent, she received a letter from the Union on
or about September 26, requesting bargaining sessions to
negotiate a new contract; that she first met the union repre-
sentative, Mr. Lednicky, sometime between September 2 and
September 26, during which time she informed him of the
many problems that were confronting the Home as a result
of the unrest among the employees with respect to the
Union's representation, and that, thereafter, she met and par-
ticipated in the bargaining sessions with Mr. Lednicky on
October 10, 18, 25, and November 10. Director Dzialo said
she again advised Mr Lednicky of the pro/con union unrest
among the employees dunng the bargaining session on Octo-
ber 18 and also during the subsequent bargaining sessions
heretofore described.
Counsel for the Respondent and counsel for the General
Counsel stipulated that the following named employees con-
stituted an appropriate unit for bargaining at Green Oak
Manor (the successor Respondent) on November 13, 1972.
Name
Date
Employed
Still
Employed
Left
Employ
Frances Rosario 4/27/64
Florence Reese 12/22/71 X
Mary Queripil 5/10/63 X
Gloria Prosper 3/29/72 11/73
Anne Paradiso 11/24/69 3/73
Marcelle Mercadante 4/28/72 Spring 1973
William Marciano 2/5/70 Early 1973
Geraldine McGuinness 5/4/72 12/26/72
Barbara Lynch 7/12/71 11/29/72
Hazel Johnson 12/13/65 12/73
Elizabeth Hacker 6/1/72 X
Virginia Donahue 2/1/72 Early 1973
Mary Craig 6 /22/70 X
Rosomond Chase 1/12/72 End 1973
Celia Truehart 4/4/72 1/73
Norma Teeter 1/5/72 X
Mary Stevens 5/13/71 3/74
Mildred Sprague
Gloria Soule
Unclear
4 /24/72 X
Frances Pandous 10/72 Unclear
Marie Lesperance 2/10/71 X
Doreen Skidmore 4/24/72 X
Teresa Upton 8/21/72 X
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In describing the nature and character of the employee
unrest, Director Dzialo repeatedly testified that during Sep-
tember through November, just about all of the employees at
the Home had visited her office voluntarily on several occa-
sions, and on their own initiative expressed their dissatisfac-
tion with the Union and the consequent dissension among the
employees as a result of harassment by union representatives;
that, largely, the employees complained that a union steward
or other union representative frequently harassed them by
directing that they not do certain of their designated nursing
duties or that they perform certain of such duties wrongfully,
all in an effort to slow down the efficient performance of
nursing services; that if said employees refused to cooperate
or to comply with said directives, they were harassed by
threats, telephone calls, and on one occasion, an employee
was slapped by another union employee for her lack of coop-
eration; and that several of said employees were harassed by
threatening telephone calls at their homes and in the Home.
Director Dzialo identified the following named employees as
some of the employees who complained to her on several
occasions about the employee unrest at the Home: Rosomond
Chase, Mary E. Craig, Hazel Johnson, Barbara Lynch, Ger-
aldine McGuinness, Frances Pandous, Susan Peterson, Flor-
ence Reese, Doreen Skidmore, Norma Teeter, Theresa Up-
ton, and other employees, some of whom are no longer
employed by Respondent. All of said employees complained
about the dissension among the employees and each of them
expressed their dissatisfaction with the Union, and either said
they did not want the Union, or they did not want any part
of the Union.
Director Dzialo said these complaints continued daily
from early September until around December of 1972. When
counsel asked Director Dzialo what had she done in response
to the many complaints with respect to the unrest in the
Home, she stated that when she first assumed her duties at
the Home, she told all nurses what their duties were and that
they must carry out those duties to the best of their ability or
they would be discharged from the nursing home; and that
such discharge would be based upon just cause, as far as she
was concerned The witness also stated that she spoke to all
of the employees and told them that there was a clause in
their bargaining contract which stated that they could be
discharged for just cause; that this was a nursing home and
they were aware of the personnel policies, which were posted
on the bulletin board on both floors; and that she would be
there daily from 9 to 5 o'clock and would see to it that this
work was carried out. She said she also told the employees
that they were dealing with human beings at this point and
not with the Union, that this was completely out of the ques-
tion; that as a nurse , herself, she felt that these poor people
needed the care more than the bickering, this dissension, not
showing up for work and the phone calls that were coming
in
Mrs. Dzialo further testified that after she discharged
Kathleen Day for the slapping incident which took place in
September, Mr. Lednicky came into her office with Miss Day
and advised her that she had no right to fire Day; and that
she told him that a person who would slap or do bodily harm
to some other employee might, in anger, do the same thing
to a patient, that such a person certainly did not belong
employed in. the Home; and that Mr. Lednicky definitely
differed with her about the matter but no grievance was ever
filed against her. She further stated that during that bargain-
ing sessions she advised Mr. Lednicky or other union repre-
sentatives that many employees did not want any part of the
Union but that union representatives simply laughed at her;
and that she started spending less time in the office and more
time on the floors observing the actions of the employees.
With respect to the prounion, conunion dissatisfaction and
dissension among the employees, the witness further testified
on cross-examination as follows:
Q. Weren't you concerned.
A. My main concern in the Nursing Home was not the
Union, per se. My main concern when Mrs. Faye asked
me to come to work at Green Oak were the patients, and
the way they were being taken care of and this was my
main and only concern in that Nursing Home at the time
and it still is to this day.
Q. There really weren't any problems with respect to
this main concern of yours.
A. There certainly was. There were many problems.
These patients -
Q. Yet you never spoke to the Union about resolving
these did you.
A. I spoke to the Union about patient care and I also
stated to the Union that if they cared -
Q. When did this occur.
A. I believe at different meetings -
Q. What was the first one.
A. It was before the first meeting when the slapping
incident occurred and I said this to Mr. Lednicky that
if the Union would only speak to these employees and
tell them what their duties were that they were dealing
with human life and not just a piece of wood this was not
industry these were human beings to be dealt with as
human beings. Not this bickering and arguing and doing
everything that they were not suppose to be doirg in-
stead of patient care. This is really my thing. I couldn't
care less about the Union, persay, if they want to con-
duct their meetings that was their prerogative. Mr. Led-
nicky came into my office, he was a perfect gentleman,
I never once was rude to him or to any other Union
official that came, I believe he came in with another
gentleman that day, no I don't remember whether it was
just with K. Day or another gertleman.
Director Dzialo further testified as follows
I did tell her that there was a Union at the Green
Oak Manor it was a closed Union shop there was a
statement in the contract that said that there was a
probationary period and that it was mandatory to join
after this probationary period.
Q. What about this question of her having to join.
A. That was her prerogative whether she wanted to
join or whether she didn't but it was mandatory as far
as the contract was concerned. I did tell her that there
was great unrest at the Nursing Home, I felt a great
sense of duty-because she was bound to encounter this.
Director Dzialo also stated that employee Pandous had
considerable personal problems while employed at the Home,
GREEN OAK MANOR 661
and that her attendance was so poor until she finally had to
discharge her Witness Pandous did not dispute this latter
testimony by the director.'
Mari Craig credibly testified that she has worked for the
Respondent as a nurse's aide for about 7 years; that in Sep-
tember 1972, she was working with employees Kathleen Day
and Mildred Sprague and she (Craig) and her girlfriend,
Norma Teeter, did not desire to become members of the
Union although they were compelled to join the same; and
that as a result of them not having willingly joined the Union
they were subjected to continual harassment from Kathleen
Day and Mildred Sprague heretofore described by Director
Dzialo. Employee Craig further testified that Union Repre-
sentative Kathleen Day and Mildred Sprague would urge her
and her girlfriend, Norma, to refrain from doing certain work
because if they failed to do some of the work, the Respondent
would be compelled to employ additional help; that she and
her girlfriend, Norma, would need help with the laundry and
with heart patients and would request such help from Day
and Sprague, but the latter two nurses aides would refuse to
assist them because they were not for the Union; that she
(Craig) came in one day and proceeded to make beds in the
section to which she was assigned, when employee Sprague
proceeded to make the same beds; that when she (Craig)
complained that Day was making beds in her (Craig) section,
Day grabbed her and proceeded to strike her head against the
wall; that she reported Day's conduct to Director Dzialo who
called both parties including nurses aide Teeter into the of-
fice; that Day admitted she struck Craig and then proceeded
to strike another nurses aide in the presence of Director
Dzialo. Craig further stated that she and her friend Norma
Teeter constantly complained to Director Dzialo about the
union dissension among the employees in the Home from
2 1 credit the testimony of Director Dzialo not only because I received the
distinct impression that she was testifying truthfully, but also because her
account of the events which occurred at the Home was essentially cor-
roborated by the credited testimony of all employee witnesses Further-
more, her testimony is in concurrence with the logical consistency of all of
the evidence of record Her testimony is also credited because she appeared
to be so preoccupied with her dedication to nursing and her deep interest
in the welfare of the patients , that she appeared to have lacked any strong
feelings either for or against union activities of the employees It was also
obvious from her expressions and the manner in which she testified, that her
frustrated concern was not with reasonable and legitimate union activity of
the employees, but rather with the extensive union/nonunion dissension
among the employees which was affecting the efficient operation of the
Home to the detriment of the patients I do not deem the witness' failure
to identify every single employee with whom she communicated about the
employees dissatisfaction with the union activity a question of her credibil-
ity, but rather I deem it a reasonable lapse of memory without any intent
to conceal or falsify the facts Hence, I hereby admit counsel for the General
Counsel's motion to admit an affidavit (G C Exh 5) given by the witness
to the NLRB in another proceeding, for the purpose of evaluating her
credibility herein Even though said affidavit is admitted in evidence, it does
not affect her credibility in my judgment , because it is not unreasonable for
her to be unable to identify from memory, every single employee with whom
she spoke during the period in question
However, it is not ai all unreasonable for the witness to have remembered
that she spoke to practically every employee or received complaints from
practically every employee over a course of several weeks prior and subse-
quent to November 10 Although it was noted as a matter of record that the
witness was a nervous and talkative witness with whom counsel for both
sides had some difficulty in having her make her answers responsive, at no
time during the proceeding did I ever receive the impression that the witness
was testifying in anyway other than truthfully Moreover , her testimony is
largely corroborated by employees Mari Craig , Florence Reese, and former
employee Frances Pandous
September through November She said that she and Norma
were being harassed about a revote in a new election before
the NLRB; that Day was a delegate to the Union and she and
Teeter told Director Dzialo that they did not want any part
of the Union; and that they did not want the Union in the
Home because it had brought nothing but trouble (dissension
among the employees).'
Florence Reese credibly testified that she has been em-
ployed by Green Oak Manor since 1971 as a nurses aide; that
she is a union delegate for the second shift; that in September
1972 she talked with Director Dzialo about the unrest among
employees at the home and the fact that employees Day and
Sprague, of the first shift, were not doing some of their work
which was hidden and left for aides on the second shift to do,
that Sprague would tell her to "leave the laundry, don't pick
up the glasses, leave them don't touch them things"; that she
told Director Dzialo that Mr. Cady, the union representative,
was not representing the employees as he should; that when
the employees tried to get in touch with Mr. Cady he would
refer them to employee Sprague; that she also told the direc-
tor she (Reese) was very upset and did not want to have
anything to do with the Union; that she had discussed the
Union with other employees, Cathy Litton, Rose Chase, and
Gerry McGinnis; that these employees did not wish to have
anything to do with the Union and that she continued to
complain of the employee unrest to the director through
November 13 or 14; that she was receiving telephone calls at
home from employees Day and Sprague whose voices she
recognized, and she reported these occurrences to Director
Dzialo; and that such troubles and dissension among the
employees occurred nearly every day.'
Frances Pandous testified that she has worked for the Re-
spondent until November of 1972; that at the time she was
interviewed for employment in September of 1973 by Direc-
tor Dzialo, the latter advised her that the employees had a
union and that the Home was having some problems with it;
that the director asked her if she wanted to join the Union and
she replied that it made no difference to her (Pandous) one
way or the other; that the director did not say anything bad
or good about the Union, but simply said they were having
problems with it and that she did not want to know her
(Pandous') opinion about it until she became acquainted with
it. On further direct examination by counsel for the General
Counsel, employee Pandous testified that she did recall pre-
viously telling the General Counsel that Director Dzialo said
she was against the Union and wanted to get nd of it. How-
ever, the witness added that Director Dzialo was against it
because it was causing the Home so much trouble.
On further interrogation by counsel for the General Coun-
sel, Pandous said Director Dzialo asked her during her inter-
view for employment whether she would be for the Union and
she replied that she did not care one way or the other as long
as she gets a job; that after being hired she learned about the
prounion, conunion employee dissension and threats and de-
cided that she did not want to join the Union. However,
3 I credit the testimony of Mari Craig because she appeared to be telling
the truth and her testimony is essentially consistent with that of Director
Dzialo and nurses aides Reese and Pandous
I credit the testimony of employee Reese because she too appeared to
be testifying truthfully and her testimony is also essentially consistent with
Director Dzialo and nurses aides Craig and Pandous
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director Dzialo had told her that if she accepted employment
there she would have to join the Union within 30 days in
accordance with the Union 's bargaining contract ; that the
director asked her if she accepted employment would she sign
to get rid of the Union; that after she was employed she
learned from her coworkers that there would be a meeting
and some of the workers were going to vote against the
Union ; and that when she was hired the director told her she
would have to oppose the Union.
Since witness Frances Pandous ' testimony about her con-
versations with Director Dzialo during her employment in-
terview appeared to have been somewhat contradictory, un-
sure, suggestive , and lacking in clarity , I interrogated her as
follows:
JUDGE GADSDEN: I would like to ask the witness one
question to clarify the record and I'd wish that you
would listen to me very carefully: During your interview
for employment, you made the statement that the Union
was discussed or at least Mrs. Dzialo mentioned the
Union to you and the problem, did she at any time say
anything to you which you understood to mean that if
you joined the Union you would not be employed.
THE WITNESS: No. Nothing like that.
JUDGE GADSDEN: During the interview did she at any
time say anything to you which led you to believe that
if you joined the Union you would not be employed.
THE WITNESS: No. I was there I got the feeling that if
I did join that's the way I felt the way she didn't like the
Union.
JUDGE GADSDEN: But did she say anything to you that
caused you to feel that way?
THE WITNESS: No, just that she didn't like the Union
and it was causing a lot of trouble for her and I figured
that she didn't want it either and if I signed for the Union
I figured I wouldn't have a job either.
JUDGE GADSDEN: I think you also said something in
your testimony about opposing the Union and did she
ask you any questions with respect to your feelings about
the Union.
THE WITNESS: Just exactly what I felt about the Union
and I said I don't care either way just as long as I have
a job.
JUDGE GADSDEN: Did she indicate to you by saying
anything to you that, lead you to believe that you would
not have been hired based upon how you felt about the
Union.
THE WITNESS: Not exactly, No. -
JUDGE GADSDEN: Please, answer as precisely as you
can, now, did she say anything that lead you to believe
that.
THE WITNESS: Not exactly, No, when I worked would
I go along with the other girls to get rid of the Union.
JUDGE GADSDEN: Did you feel at that time that if you
didn't join those who were opposing the Union you
would not have been hired.
THE WITNESS: That's the way I felt, yes.
JUDGE GADSDEN: Did she say that to you or anything
to make you believe that.
THE WITNESS: No. Just the way she had asked about
the Union, how I thought about it -
JUDGE GADSDEN: But your answer to her in terms of
your feelings about the Union -
THE WITNESS: I said I didn 't care either way.
JUDGE GADSDEN: It did not matter either way.
THE WITNESS: No, as long as I had a job.'
Richard Lednicky credibly testified that in late August or
early September 1972, he succeeded a Mr. Francis Cady as
an organizer for District 1199 Mass., National Union of
RWDSU, AFL-CIO, formally known as Local 1199 Massa-
chusetts National Union of Hospital and Nursing Home Em-
ployees, RWDSU, AFL-CIO, and that he proceeded to com-
municate with the successor Respondent herein; that prior to
the expiration of the collective-bargaining agreement
(11/10/72) between the Respondent and the Union, he wrote
a letter (Resp. Exh. 1) requesting a meeting to negotiate a new
collective-bargaining contract; that thereafter the respective
parties did meet in negotiation sessions on October 18 and 25,
and on November 10; that after the third session on Novem-
ber 10 he received a telephone call and a letter (G.C. Exh. 4)
from Respondent which read as follows:
November 13, 1972
Mr. Richard Lednicky
Local 1199, National Union of Hospital and Nursing
Home Employees, RWDSU
128 Boylston Street
Boston, Massachusetts 02116
RE: Faye Nursing Home d/b/a Green Oak Manor and
Local 1199, National Union of Hospital & Nursing
Home Employees
Dear Sir,
Please be advised that on behalf of the above named
Employer, I have filed "RM" petition with the N.L.R.B.
Boston Office, seeking to determine whether a majority
of bargaining unit employees still desire your union as
their collective bargaining representative. This action
was initiated after the expiration date of midnight
November 10, 1972 to the parties prior bargainng agree-
ment.
In light of the foregoing, I am cancelling any further
bargaining sessions with your union until or unless your
majority status is re-established by means of an
N.L.R.B. conducted election.
LMS/j
Very truly yours,
5 I credit and discredit certain portions of Frances Pandous' testimony as
follows: With respect to the prounion, conunion dissension and unrest
among the employees in the Home, I credit the witness' testimony because
it was clear, it was essentially consistent with the testimony of Director
Dzialo and nurses aides Craig and Reese. However, with respect to her
testimony which implied that Director Dzialo wanted her to oppose the
Union or that the director hired her upon her'(Pandous') attitude towards
the Union, I discredit her account because it was based upon mere conjec-
ture of the witness, rather than upon any clear statement or question by the
director, as the witness ultimately admitted.
t
GREEN OAK MANOR 663
cc: LAWRENCE M. SISKIND In view of the fact that the evidence of record clearly shows
Richard D Zaiger, Esq.
N.L.R.B.
Bulfinch Bldg.
15 New Chardon Street -
Boston , Mass 02114
Mr. Lednicky further testified that he presented a contract
proposal at the first bargaining session on October 18 which
included a request to retain the union-security clause of the
existing agreement, that at the second bargaining session on
October 25, the Respondent did not feel that it should honor
the union-security clause; that in the bargaining session on
November 10, counsel for Respondent advised him that Re-
spondent had advised him that Respondent had rejected ev-
erything that the Union had proposed; and that he was com-
pletely surprised when he received Respondent's letter (G C.
Exh. 4) of November 13, because he and counsel had agreed
to have another bargaining session on November 13.6
Mr Lednicky denied that Director Dzialo ever informed
him about the employees' unrest and dissatisfaction with the
Union or its activities.'
Analysis and Conclusions
A review of the evidence of record makes it clear that the
crucial question presented for decision in this proceeding is
whether Respondent, at the time it withdrew its recognition
of the Union (11/13/72), had sufficient objective considera-
tions (grounds) for believing a majority of its employees no
longer desired the Union's representation, and which thereby
justified its refusal to bargain thereafter with the Union. The
principle of law applicable in the resolution of this question
appears to be well settled as stated in Celanese Corporation of
America, 95 NLRB 664 (195 1), and in Laystrom Manufactur-
ing Co., 151 NLRB 1482 (1965), as follows:
Absent special or unusual circumstances, a union enjoys
an irrebuttable presumption of majority status for 1 year.
Thereafter, the presumption becomes rebuttable upon a
sufficient showing which cast doubt on the Union's con-
tinued majority status. At that point, the burden of going
forward with the evidence shifts to the General Counsel
to prove that, on the critical date [November 13, 1972,
herein] the Union in fact represented a majority of the
employees
6 1 credit the testimony of Mr'Lednicky because his testimony in this
regard is undisputed and the manner in which he testified conveyed an
image of truthfulness
I However, I do not credit Mr Lednicky's denial that Director Dzialo
informed him about the employees' unrest and dissatisfaction with the
Union or its activities because of the unsure and slow manner in which he
testified in this regard, and also because of the impression I received from
observing his demeanor that he was not telling the truth while he'was
undergoing direct and cross-examination on this subject He first said he did
not recall Director Dzialo informing him of the unrest and dissension among
the employees, and he did not deny that he knew about or participated in
a discussion about the slapping incident
that more than a year has elapsed since the Union was certi-'
fied the collective-bargaining representative for the em-
ployees of the Respondent, the evidence does not call into
question an irrebuttable presumption which prevails through-
out the 1-year period following certification.' On the contrary,
the evidence shows that, pursuant to law, a presumption of
continued majority status prevails in favor'of the Union. In
this regard, a careful examination of the Respondent's evi-
dence of its asserted doubt of the Union's majority status
before, on, and subsequent to November 13, shows that the
Respondent had been specifically and personally informed
(through its Director Dzialo) by all employees in its employ
before and on November 13, as well as by some employees
who were no longer in its employ, that they either did not
want any part of the Union, or that they did not want the
Union.
Although only one of the employee witnesses who testified
said she specifically advised director Dzialo that she did not
want the Union to represent her. I, nevertheless, was per-
suaded by the testimony of Director Dzialo and the other
employee witnesses that the other employees' expressions
about the Union meant they were dissatisfied with the
Union's activities and representation and no longer desired it
as their official representative. Based upon the evidence, I am
further of the opinion that the Respondent also understood
the employees to mean that they were renouncing their sup-
port for the Union. Under the circumstances of the em-
ployees, whose memberships in the Union were required by
a union-security clause in order for them to remain employed
by the Respondent, it would appear that the only realistic
interpretation to be placed upon the evidence is that the
employees were saying they no longer desired the Union to
represent them. ' =-
While it is true that the employees could have withdrawn
their membership from the Union or cancelled their check-
offs, I do not believe that such acts of renunciation of em-
ployees are required of the Respondent by the law in order
to demonstrate that it has a reasonable good-faith doubt of
the Union's majority status of employees. This is especially
so where the employees' memberships in the Union are re-
quired by a union-security clause in the contract. In any
event, while such a requirement may be more demanding
where the Respondent contends and must in fact establish a
lack of majority support for the Union, such a requirement
would certainly not appear to be mandatory to support a
reasonable and good-faith doubt of the Respondent that the
Union no longer enjoyed its majority status. In this respect,
the law is clear that where certification of a Union has been
in effect for 1 year or more, an employer may withhold recog-
nition or further bargaining with a union without violating
the Act if, but only if, he in good faith has a reasonable doubt
of the union's continuing majority status. Such an assertion
of doubt by an employer must be made in good faith and must
be supported by objective considerations. The applicable test
as defined in the Celanese case, heretofore cited, is whether
or not the objective facts furnish a "reasonable basis" for the
asserted doubt, or, stated another way, whether or not there
are "some reasonable grounds for believing the Union has lost
its majority status since its certification "
Thus, in applying these applicable principles of law to the
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts in the instant case, it is first noted that the record does
not contain any evidence or allegation of bad-faith bargaining
on the part of the Respondent, inasmuch as the latter was
engaged in bargaining sessions and amenable to bargaining
up to the very day Respondent terminated further bargaining
sessions. The fact that it had not presented a counterproposal
within that short bargaining period or that the parties had not
reached an agreement is not ipso facto evidence of bad-faith
bargaining . It is also noted that the Respondent is not
charged with nor does the evidence indicate that it engaged
in any other unfair labor practice. Moreover, a few days
subsequent to informing the Union that Respondent would
not engage in further bargaining sessions because it doubted
the Union's majority status, it nevertheless filed an RM peti-
tion in further support of its doubt that the Union continued
its majority status. While it is true that it is better for an
employer questioning a union's majority status to continue to
bargain and file an RM petition if sufficient facts exist to
support a good-faith doubt of majority status, the law does
not indicate that the employer is bound to file such a petition
as a condition precedent to withdrawal of recognition of the
union and bargaining sessions . The fact that Respondent did
file an RM petition almost concurrently with its refusal to
bargain is evidence of its good faith that it doubted the
Union's majority status.
In this case the objective considerations upon which the
Respondent predicates its doubt of the Union's majority
status consist of the creditable testimony of the Respondent's
director, two of its employees, and a former employee. Here
the director of the Respondent (Theresa Dzialo) credibly
testified that all of the 23 employees (employed on November
13, 1972, and more specifically the 14 employees identified in
her testimony) complained to her about their dissatisfaction
with the Union and/or its activities, and expressed their
renunciation of the Union and/or its activities. In this regard,
Director Dzialo's testimony was in great part corroborated
by the testimony of employee Mari Craig, Florence Reese,
and former employee Frances Pandous. Their testimonial
versions are all undisputed in the record and counsel for the
General Counsel did not submit any credible evidence to
refute or discredit any of the Respondent's testimony with
respect to the Union's majority representative status. It is
therefore clear that the objective evidence of Respondent's
doubt of the Union's majority status coincided with its as-
serted refusal to bargain on November 13.
The Board has repeatedly held that once it is established
that the employee has "an objective basis" to justify its doubt,
as I find in the instant case, the General Counsel has the
burden of proving the Union's majority status. Since the
General Counsel did not introduce any evidence to establish
the Union's majority status nor any evidence to refute the
Respondent's evidence of reasonable belief of lack of union
majority status, the evidence of record compels the conclu-
sion and finding that the Respondent has successfully rebut-
ted the presumption of the Union's majority status. To hold
otherwise, I would be compelled to disregard or discredit the
testimony of all of Respondent's witnesses, including the
General Counsel's witness, Frances Pandous, and find for the
General Counsel, solely upon his argument, unsupported by
any evidence, that the Respondent's doubt was not reasona-
bly based upon objective considerations, and/or that it was
asserted in bad faith. Certainly such a finding under either
theory would be without foundation in the record.
Finally, based upon the foregoing evidence, the law, and
reasons, I conclude and find that the Respondent 's doubt of
the Union's majority status was reasonably supported by ob-
jective considerations (renunciation of the Union by a
majority of its employees) and asserted in good faith on
November 13 and thereafter; that the burden of going for-
ward with the evidence then shifted to counsel for the Gen-
eral Counsel, who did not go forward with any credible and
convincing evidence to the contrary, that the Respondent's
evidence therefore successfully rebutted the presumption of
the Union's majority status; that consequently, the presump-
tion of the Union's majority status has been successfully over-
come by the Respondent; and that, therefore, the Respondent
did and could justifiably refuse to bargain with the Union on
and subsequent to November 13 and that such refusal was not
violative of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act. Accordingly, it will be recommended that the
complaint be dismissed.
Upon the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Faye Nursing Home, Inc., d/b/a Green Oak Manor, the
Respondent herein, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 1199 Mass., National Union of Hospital and
Nursing Home Employees, RWDSU, AFL-CIO, herein, is a
labor organization within the meaning of Section 2(5) of the
Act
3. The Respondent has not engaged in any unfair labor
practices, as alleged, within the meaning of Section 8(a)(5)
and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The complaint in this matter is dismissed in its entirety
8 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 find-
ings, 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 puiposes