Hermitage Hospital Products

National Labor Relations Board - Board Decisions

Nov 8, 1978

239 N.L.R.B. 216 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hermitage Hospital Products, a Division of Hermi-
tage, Inc. and United Steelworkers of America,
AFL-CIO, Local Union 14120. Case I-CA-13577
November 8, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRIUESDALE
On August I, 1978, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Hermitage Hospital
Products, a Division of Hermitage, Inc., its officers,
agents, successors, and assigns, shall take the action
set forth in the recommended Order.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
found herein.
I Respondent has requested oral argument. This request is hereby denied.
as the record, exceptions, and brief adequately present the issues and posi-
tions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
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 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG. Administrative Law Judge: This case
was heard at New London, Connecticut, on April 17, 1978.
The charge was filed by the Union on September 2, 1977,'
and the complaint was issued on October 27.
On July 22, the day after the Company 2 canceled a be-
lated meeting with the Union to begin negotiating a new
collective-bargaining agreement, the new company presi-
dent held an employee meeting and expressed his antiun-
ion attitude. On August 8 and 9, following the July 31
expiration of the union agreement, the Company approved
the circulation of a decertification petition in the plant. It
later withdrew recognition of the Union, claiming doubts
of the Union's majority status. The primary issues are
whether the Company (a) threatened closure of the plant,
(b) unlawfully permitted circulation of the decertification
petition during working time, and (c) unlawfully withdrew
recognition of the Union, in violation of Section 8(a)(1)
and (5) of the National Labor Relations Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the General Counsel's brief and the Company's arguments
at the hearing, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company, a Connecticut corporation, is engaged in
the manufacture of surgical dressings and related products
at its plant in Niantic, Connecticut, where it annually ships
goods valued in excess of $50,000 outside the State. The
Company admits, and I find, that it is engaged in com-
merce within the meaning of the Act, and I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11 ALLEGED UNFAIR LABOR PRACTICES
Coercion of Employees
A. Threat of Plant Closure
The union agreement, effective from August 1, 1975, un-
til July 31, 1977, covered an appropriate unit of all employ-
ees at the Niantic plant, excluding executives, office and
clerical employees, sales employees, guards, watchmen,
firemen, and foremen, foreladies, and other supervisors.
On May 23, the Union sent the Company a termination
notice, offering to begin negotiations for a new agreement.
About the first week in July, Company Attorney Mau-
rice Epstein telephoned the Union's international staff rep-
resentative, Francis McDermott, and notified him that for-
mer President Reuben Pitts was no longer in charge of the
Niantic plant, that President Williams Pitts would be tak-
ing over the plant, and that "from the looks of things they
weren't going to bargain" with the Union. (Epstein repre-
sented the Company at the trial and did not testify. I credit
this testimony given by McDermott, who impressed me as
being a credible witness.) Epstein added that the company
officials "didn't want a union, they didn't need a union."
All dates are in 1977, unless otherwise stated.
2 The name of the Respondent Company was corrected at the hearing to
reflect the change on January 1, 1978, of its status as wholly owned subsid-
iary to that of a division of the parent corporation
216
HERMITAGE HOSPITAL PRODUCTS
However, he stated that "it was a little unsettled at that
time" and promised "to make a further effort to see if he
could get us across the bargaining table," indicating that
"we had had a relationship . . . for a good number of
years." Within a few days, Epstein called McDermott
back, again indicated that "this Company is not going to
bargain, they don't feel that they need the Union, they can
get along without the Union. They are from a right-to-
work State ... from the South and they just don't want to
bargain . . . but . . . I will try like hell." McDermott re-
sponded that Epstein had been with them a lot of years,
"See what you can do."
In their next telephone conversation, about July 15,
Company Attorney Epstein told Union Representative
McDermott "we are doing business with a different man
now. Reuben [Pitts] appreciated sitting across the table and
negotiating a contract; now we've got different manage-
ment," and "an altogether different opinion." However,
Epstein said he would try to set up a meeting, and agreed
with McDermott that Thursday, July 21, would be conven-
ient. Thereafter Epstein called back, advised that a meeting
had been set up with McDermott and the employee com-
mittee at 2 p.m. on July 21, and persuaded McDermott to
vary the usual procedure and present Epstein with the
Union's proposal before the negotiating meeting.
On Thursday, July 21, the Company canceled the sched-
uled negotiations. Company Attorney Epstein met private-
ly with the company officials and discussed the Union's
proposal. Instead of recommending that they meet with the
Union, Epstein (as Robert Crawford, the new general man-
ager, testified on direct examination) "outlined various
courses of action that were open to us, that we could either
negotiate a new contract, we could meet and discuss it, or
we could, if we felt that the Union no longer represented
the majority of our employees, there were several methods
that we could consider." The officials decided not to meet
with the Union that afternoon and to defer final decision
on whether to continue recognizing the Union. Meanwhile
that evening, Epstein telephoned Representative McDer-
mott and told him that "from all indications the Company
wasn't going to bargain" with the Union.
The next morning, July 22, President Pitts met with
about 15 employees from about 9:45 a.m. until noon. As
credibly testified by employee Betty Biggie (who impressed
me as being an honest, forthright witness), Pitts stated that
he intended to expand the Niantic plant and that they were
moving the salesmen from New York to Niantic. "He said
that there was a union here, that he would have to cope
with it, but he didn't like it, he didn't believe in unions."
He then threatened that "if this [union] was ever taken out
that he would never have another union in there. that he
would close the shop first [emphasis supplied], and that they
had closed one from trying to get a union in or something
down south." (The evidence does not reveal what plant he
was referring to.) Pitts explained that "he did not believe in
any employee putting grievances down on a piece of paper
and sending them in there, and having outside help come
in to run his plant." In answer to a question about their
contractual benefits if the plant went nonunion, Pitts stat-
ed that "no benefits would be taken away under this con-
tract. They wouldn't take nothing away from us." (Em-
ployee Helen Howard recalled that Pitts said "he didn't
believe in a union, but as long as it was in there . . . he
would go along with it. But if ever the union left, he
wouldn't let another one come in . . . if another union
tried to come in he would close the shop if he had to.")
Pitts testified that "we had just had the [July 211 meeting
with you [Attorney Epstein] on the Union .... And rath-
er have a plant without a union that with a union." When-
uld asked about saying anything in the speech about clos-
ing the plant in order to keep a union out, he claimed, "My
personal intentions were not to make any statements of
that sort .... I am not a good speaker .... I am not
saying I should be excused from any testimony that I said
but it is certainly not my intention to say that I would close
down the plant simply because there is a union in it." He
later denied making any reference to closing the plant in
order to keep a union out. (He impressed me as being less
than candid, and I discredit his denials.)
Although President Pitts did not threaten to close the
Niantic plant in order to eliminate the Union, the credible
evidence reveals that he did threaten plant closure to keep
out another union. I find that this threat, particularly in the
context of his antiunion statements and the Company's
cancellation of the negotiating meeting with the union
committee and representative the day before, was coercive
and violated Section 8(a)(l) of the Act. (The General
Counsel contends in his brief that Pitts solicited grievances
at the meeting and made promises to correct them without
the assistance of the Union. However, such a violation is
not alleged in the complaint.)
Following this threat, few employees indicated an inter-
est in joining another union. Employee Alba Foltz (who
had previously opposed the Union) contacted an Interna-
tional Ladies' Garment Workers' Union (ILGWU) repre-
sentative who met with employees about August 2 and
again on August 4. Fewer than 15 employees attended the
first meeting, and 28-only 15 percent of the 187 bargain-
ing unit employees-attended the second meeting. (Repre-
sentative McDermott complainted to the ILGWU repre-
sentative, "Don't you know this is an organized shop?" and
asked if the ILGWU was "knocking on the door to help
the Company get an open shop." The ILGWU immedi-
ately withdrew.)
B. Circulation of Decertification Petition
1. Company approval
While the Company was discussing at its Camden, S.C.,
headquarters the alternatives which it had received from
Attorney Epstein, Vice President Arthur Breen was giving
union opponent employee Foltz permission to circulate
copies of a union decertification petition in the plant.
Despite Foltz' efforts as a defense witness to conceal the
part the Company played, the evidence shows that the
Company both gave its approval before the petitions were
drafted and at least acquiesced in the wording and circula-
tion of the petitions. The copies of the petition read:
THIS PETITION IS FOR THE PURPOSE OF
GETTING OUR UNION OUT. IN ORDER TO DO
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THIS WE STA Y WITHOUT A UNION FOR A
YEAR AND GIVE THE COMPANY A TRIAL PE-
RIOD TO PROVE THEY CAN GIVE US BETTER
BENEFITS THAN THE UNION. IF NOT THEN
WE GET THE NEW UNION IN. I'M SURE THE
COMPANY WILL PROVE ITSELF, BECAUSE
THEY DON'T WANT A UNION. IT'S YOUR DE-
CISION TO SIGN OR NOT AND DATED. THIS
HAS OFFICE APPROVAL. THANK YOU. lEmpha-
sis supplied.]
It is clear from the wording of the petitions ("This has
office approval") that employee Foltz had received compa-
ny approval before she typed them. (Foltz, who appeared
to be a most untrustworthy witness, first denied that she
talked to Vice President Breen about the petitions "at any
time" and at one point claimed that "management knew
nothing about this petition until August 10"-after the pe-
titions were signed on August 8 and 9-and further
claimed that management had "no idea" that she was cir-
culating the petition.) Breen, when asked on the stand if
Foltz or anyone else spoke to him about circulating a peti-
tion, admitted that "they asked to do it" and he approved.
(And, despite her other testimony, Foltz herself acknowl-
edged-when pointedly asked if she talked to Breen before
circulating the petitions-"I went in there and I told him I
was going to circulate a petition. I had to have an okay
before anything goes in the mill.") Moreover, Foltz and the
Company were using a common approach in opposing the
Union. As quoted above, Foltz typed on the petitions (after
getting Breen's approval to circulate them), "We stay with-
out a union for a year and give the Company a trial period
to prove they can give us better benefits than the Union. If
not then we get the new union in . . . . This has office
approval." It is undisputed that similarly on August II or
12, after the signed petitions were turned in to the Compa-
ny, General Mangaer Crawford told employees in a meet-
ing (as credibly testified by employee June Madden) that
"we didn't need a union" and that "if we would go along
with the Company" and "let them work out things and
problems" for "approximately a year," then "if the em-
ployees were not satisfied," they could try to "get another
union in."
2. Circulated on company time
Following the ILGWU withdrawal after its August 4
meeting, employee Foltz contacted the Board regional of-
fice, talked to Vice President Breen, and arranged for sev-
eral other employees to assist her in soliciting signatures on
the union decertification petitions, which she typed at
home, asserting, "This has office approval."
It is undisputed, as defense witness Foltz acknowledged,
that there is a company policy against solicitations in the
plant and that there are no-solicitation signs "all over the
mill." There are also strict rules against employees being
away from their work. Foltz revealed, "I was three minutes
late last week coming down from a coffee break and my
boss came up and got me." Employee Donna Goodall, an-
other defense witness, acknowledged her awareness of
these rules, testifying that the employees "can't leave" their
departments (during working time).
On August 8, however, the Company permitted employ-
ee Foltz and other employees to be away from their work
and to solicit decertification signatures on company time.
Foltz testified that she went "on all the floors" of the plant
and told employees when soliciting their signatures that
"this has office approval." She acknowledged that she did
not request permission to leave her work. About 9:15 that
morning (as employee Biggie credibly testified, although
she did not remember the correct date), Foltz was on the
second floor with a copy of the decertification petition.
Biggie, who was going to the cafeteria on her 9:15-9:30
a.m. break, realized at the time that Foltz was away from
her first-floor work station during working time because
the first-floor break period was later (from 9:35 to 9:50
a.m.). Nearly an hour had passed when first-floor employ-
ee June Madden saw Foltz and Josephine Novick (a first-
floor employee assisting Foltz in soliciting signatures) re-
turn to work at 10:10 a.m. The supervisors did nothing to
require the antiunion employees to remain on the job or to
stop soliciting signatures during working time.
Two other employees soliciting decertification signatures
that day were Donna Goodall and Joyce Brown. About
1:10 p.m., after the lunch period, employee Madden ob-
served Goodall in Brown's department. As Madden (who
impressed me favorably as a witness) credibly testified, she
saw Goodall give employee Cyril Lucier a copy of the peti-
tion (apparently the one being circulated in Brown's de-
partment) and heard her ask him to come over and sign it.
At the time, Lucier was talking to the supervisor, Leo Cor-
mier. Although both Goodall and Lucier were on company
time, Cormier said nothing. As requested, Lucier went over
and signed the decertification petition, within view of the
supervisor. (Goodall acknowledged that she, a longtime
opponent of the Union, had talked to Lucier about the
ILGWU, but she denied that she solicited his signature on
the petition. I discredit the denial.)
That same afternoon, after leaving work at the end of
her day shift, employee Goodall returned to her depart-
ment and solicited the signatures of evening shift employ-
ees on a separate copy of the decertification petition. On
cross-examination, she at first readily acknowledged that
she was soliciting the signatures on the employees' working
time. She testified, "They were working, but they weren't
taken from their jobs," and that was right, she "went up to
them at each work station." She next acknowledged that
the supervisor had seen her doing this. Thent, apparently
recalling the company defense, she changed her testimony
and claimed, "No, as a matter of fact, I made a mistake on
that. I left that paper with" another employee and asked
her to get the signatures, "but wait until her coffee break or
lunch hour." (I credit her first version of what happened.)
Most of the signatures were obtained on August 8, the
first day of the solicitations. (A total of 68 signatures were
dated August 8, I was undated, and 6 were dated August 9.
There were 187 bargaining unit employees at the time.) On
the second day, employee Madden heard employee Foltz
being called to the office after lunch. Foltz returned to the
first floor about 15 or 20 minutes later with a copy of the
petition in her hand and spoke to employee Novick at
Novick's machine for about 2 minutes. I note, in this con-
218
HERMITAGE HOSPITAL PRODUCTS
nection. that the copy of the petition which Novick and
Foltz signed at the top had one signature dated August 9
added at the bottom. (Foltz, who appeared to be attempt-
ing to conceal what actually happened, gave much conflict-
ing testimony about when she turned in the petition and
about her conversations with Vice President Breen. After
repeatedly testifying that she turned in the August 8 peti-
tions on that day, giving them to Breen, she later claimed
that "management knew nothing about this petition until
August 10." She testified that she did not turn in the peti-
tion circulated by employee Brown on August 8 "because I
still had to get more signatures . . . because I needed one-
third" of the employees. Yet she testified, "I had no idea
how many people were employed in the plant, made no
attempt to find out," and "just took it for granted that . . .
when I turned them in to the office they could tell me
whether it was one-third or not." Still later she testified that
she "just thought I would get whatever signatures I could
.... I don't know how many were employed in that
plant, she never made any inquiry, and "No," it never oc-
curred to her to make that inquiry.)
About August I, after Union Representative McDer-
mott returned from a short vacation, he complained to
Company Attorney Epstein that a petition was being
pushed around the plant "on company time." On August
II and 12, General Manager Crawford met with all of the
employees. In one of these meetings, as employee Madden
credibly testified, employee Goodall (who had already ob-
tained some of the decertification signatures) asked Craw-
ford how they could get out of the Union. Ignoring the fact
that the Company had already received the decertification
petitions from employee Foltz, Crawford answered that
"he didn't see why anybody had to belong to something
that they didn't want to," that 'they could circulate a peti-
tion" to go to the NLRB and that "if they circulated the
petition it would have to be done on their own time." (I
infer that before Crawford held this meeting, the attorney
had cautioned him against supervision permitting such so-
licitation on company time.)
At the hearing, employees Foltz and Goodall denied that
the petitions were circulated during working time, and
Foltz and Vice President Breen claimed that Breen permit-
ted the circulation only on the employees' own time. I find
that this testimony was fabricated as an afterthought, in
the Company's defense. (I also discredit Foltz' denial that
she was "aware of the fact that management didn't want
the Union in the plant"--contrary to what she typed on the
petitions, after talking to Vice President Breen. that "I'm
sure the Company will prove itself, because they don't
want a union," and that "this has office approval." I fur-
ther discredit, as a great exaggeration, Foltz' claim that
"there was about 75 girls from the mill" at the second
ILGWU meeting on August 4-nearly three times the ac-
tual number of 28.)
3. Contentions and concluding findings
The General Counsel contends that in the context of the
Company's refusal to meet with the Union and President
Pitts' expression of union hostility, the employees knew
that employee Foltz' activities had been given tacit ap-
proval by way of the fact that she had been given free rein
of the plant in order to circulate the petition. The General
Counsel also contends that "the Employer was fully aware
of which employees had signed the petition," and "the fact
that Foltz had written 'this has company approval' over the
face of the petition constituted unlawful interference." The
Company, on the other hand, contends that the petition
was "circulated entirely on the initiative of the employees,"
and "as far as the company knows, it is not true that it was
done during working hours."
It was clear to the employees on August 8 and 9 that the
Company was sponsoring the decertification effort. The
Company had canceled the July 21 negotiating meeting
with the union committee and staff representative, and the
new company president had expressed his union hostility
to a group of employees and had threatened them with
plant closure to keep out another union. Then on August 8,
despite the no-solicitation signs around the plant and the
strict rules against leaving work, the company supervisors
permitted antiunion employees (who had previously op-
posed the Union unsuccessfully) to engage in a working
time campaign to solicit signatures on the union decertifi-
cation petitions. Antiunion employee Foltz was allowed to
leave work, without permission, for at least 55 minutes at
one time (20 minutes before and 20 minutes after her break
period) and to solicit decertification signatures on all three
floors of the plant. Antiunion employee Goodall, during
working time, was permitted to solicit and obtain the signa-
ture of an employee who was talking to one of the supervis-
ors. Goodall was also permitted to return to her depart-
ment on the following shift, to go to the work stations of
the employees, and to solicit their signatures while they
were working. The following day, Foltz was called into the
office during working time and was seen returning to her
department 15 or 20 minutes later with a copy of the peti-
tion to try to get more signatures-after first conferring on
the job with antiunion employee Novick, who had been
assisting her in soliciting signatures.
The petition stated that the Company did not want a
union and specifically stated, "This has office approval."
When soliciting the employees' signatures, employee Foltz
assured them that it had "office approval."
Thus the employees were placed in the position of either
signing the decertification petition or, by omitting their sig-
natures, running the risk of incurring the Company's disfa-
vor. The fact that the decertification effort failed to per-
suade a majority of the employees to turn against the
Union does not disprove its tendency to coerce the em-
ployees.
I therefore find that under these circumstances, includ-
ing the Company's refusal to meet with the Union, its ex-
pressions of union opposition, its threat of plant closure,
and its no-solicitation rule and rules against leaving work,
the Company coerced the employees in the exercise of their
Section 7 nghts by permitting employees on August 8 and
9 to circulate a union decertification petition during work-
ing time in work areas on the Comany's premises, thereby
violating Section 8(a)(1 ) of the Act as alleged in the com-
plaint.
The complaint also alleges that General Manager Craw-
ford on August 12 "created an unlawful impression of sur-
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veillance by offering to return signed authorization cards
to employees, and requesting the employees to destroy
them." However, I discredit employee Frankie Malombe's
testimony that she saw about 20 ILGWU cards in
Crawford's hand at the meeting she attended, that Craw-
ford said the cards in his hand had been signed, and that
he "advised them to take these cards back and destroy
them." I credit instead Crawford's denials and dismiss this
allegation in the complaint. (It is undisputed, however, that
Crawford told employees that they "didn't need a union"
and that if the employees "would go along with the Com-
pany" and let the Company "work out things and prob-
lems" for "approximately a year," then "if the employees
were not satisfied," they could try to "get another union
in.")
C. Refusal To Bargain
Withdrawal of recognition
Following their July 21 meeting with counsel (when he
gave them alternatives to consider and when they refused
to meet with the Union that afternoon), President Pitts and
General Manager Crawford met at the Camden headquar-
ters and discussed the pros and cons with other officials.
On August 11, as Crawford credibly testified, he an-
nounced to counsel the Company's decision to withdraw
recognition from the Union because "we wanted to find
out what the people really wanted in Niantic." Crawford
then met with all of the employees, in 8 or 10 groups. That
was when he told employees in at least one of the groups
that they did not need a Union and that they should go
along with the Company for abour a year without a union,
as discussed above. Finally on September 2, Attorney Ep-
stein sent the Union a letter stating that the Company
"doubts that your union represents a majority of its em-
ployees . . . and is therefore unwilling to recognize your
union . . until the representation question is determined
by an N.L.R.B. election." (The Company did not file a
petition for an election.)
When asked by company counsel at the trial the reasons
for withdrawing recognition, Generai Manager Crawford
answered: (1) "Well we had heard from Mr. Breen [vice
president and plant manager] and other people in the
plant, the payroll girl, for instance, said that people that
belonged to the Union were constantly complaining about
the dues that were being deducted. There seemed to be a
lot of unrest among union members." (2) "Mr. Breen got
the feeling--I didn't quiz him for details, but I didn't know
anybody at that time-that there were a substantial num-
ber of people within the union that wanted out, and non-
union members who felt that it was an obstacle." (3) There
was the (August 3) "letter from the Ladies Garment
Union" (which stated, "We have begun an organization
drive"). (4) "There may have been two or three other
things," including the fact that dues checkoffs were "in the
70 range," while there were "190 or so" employees in the
bargaining unit. "And simple arithmetic told us that this
also meant to us that a number of people did not want the
Union." Crawford added, "I had heard previously that
there was never a majority."
It is clear that these purported reasons, singly or in com-
bination, do not rebut the presumption of majority status
following the expiration of the Union's lawful 1975-78
contract.
As held in Terrell Machine Company v. N.L.R.B., 427
F.2d 1088, 1090 (4th Cir. 1970), "Upon expiration of the
original certification year, a rebuttable presumption of rep-
resentative status exists, and it is sufficient to establish pri-
mafacie a continuing obligation to bargain .... The pre-
sumption may be overcome . . . if the employer
demonstrated that the Union, in fact, no longer enjoyed
majority support on the date of the refusal to bargain, or
that the refusal to bargain was predicated upon a reason-
ably grounded good faith doubt of majority support." Also
as held in N.LR.B. v. Gulfmont Hotel Company, 362 F.2d
588, 589 (5th Cir. 1966), "any doubt as to the continuing
majority status .. may not depend solely upon unfound-
ed speculation or a subjective state of nmind."
Concerning (1), that an undisclosed number of employ-
ees were complaining about dues and "there seemed to be
a lot of unrest among union members," the complaining
does not demonstrate that the employees no longer wish
union representation, and the seeming unrest is merely
subjective.
Concerning (2), that Vice President Breen "got the feel-
ing" that "a substantial number" of union members "want-
ed out" and that nonmembers considered the Union an
obstacle, these "feelings" are also clearly subjective.
Concerning (3), the receipt of the notice of the ILGWU's
organizing effort, very few employees attended the
ILBWU's August 2 and 4 organizing meetings (even if the
Company received reports of the meetings), and on August
5 the ILGWU notified the Company of its withdrawal,
stating that it "no longer is able to consider representing
your employees." Furthermore, the Company revealed at
the time that it did not believe that the ILGWU repre-
sented a majority of its employees. On August 8, before
receiving the August 5 disclaimer, President Pitts wrote the
ILGWU a letter, stating, "Please be advised that workers
at Hermitage Hospital Products are not interested in being
represented by the ILGWU, AFL-CIO."
Concerning (4), that less than a majority were on check-
off (actually 37 percent, 69 out of 187 employees in the
bargaining unit), that "simple arithmetic told us that this
also meant to us that a number of people did not want the
Union," and that Crawford had heard that the Union nev-
er had a majority, it has often been held that failure to pay
dues does not necessarily indicate lack of union support.
As held in Terrell Machine Company v. N.L.R.B., supra, 427
F.2d at 1090: "A showing that less than a majority of the
employees in the bargaining unit were members of the
union or paid union dues was not the equivalent of show-
ing lack of union support. Manifestly [where not required]
many employees are content neither to join the union nor
to give it financial support but to enjoy the benefits of its
representation. Nonetheless, the union may enjoy their
support, and they may desire continued representation by
it." In N.L.R.B. v. Gulfmont Hotel Company, supra, 362
F.2d at 592, where there were 77 names ("probably correc-
tible to 75") on the noncompulsory checkoff list, the court
held that "comparison of the checkoff lists and a compari-
220
HERMITAGE HOSPITAL PRODUCTS
son of additions and subtractions from the list, in a legal
sense, showed nothing with reference to what percentage of
the 186 employees . . . still wished to have their bargaining
unit represented by the unions."
The Union (the successor of District 50, which had been
certified in a state proceeding about 1958) had never ob-
tained a union-shop provision in its contracts with the
Company and had never secured checkoff authorizations
from a majority of employees. (In April, when there were
206 employees, the Union had 75 checkoff cards, or 36.4
percent; in August, when there were 187 employees, the
Union had 69 cards, or 36.89 percent. Between January
1976 and June 1977, the number of checkoff cards ranged
from 71 to 75.) It is undisputed that "two contracts" be-
fore, when the Company questioned the Union's majority
status (because of the limited number of checkoffs), the
Union offered to consent to an election, stating, "If we win
the election, you give us the union shop. If we lose the
election, you have the plant." The Company refused. In
this connection, I note that in Attorney Epstein's opening
argument at the hearing, he implied continuing union sup-
port through the years by conceding that "there was no
objection from the employees to the Company's continuing
to sign contracts because they were not required to join."
Furthermore, at the time the Company announced to At-
torney Epstein on August II that it had decided to with-
draw union recognition, the Company had a strong indica-
tion that a majority of the employees continued to support
the Union. Despite the coercive circumstances under which
signatures on the August 8 and 9 decertification petitions
were solicited (as discussed above), the antiunion employ-
ees were successful in obtaining only 75 signatures (40 per-
cent of the 187 employees)-the remaining 60 percent re-
fusing to turn against the Union.
Accordingly, I find that the Company has failed to rebut
the presumption of the Union's continued majority repre-
sentative status either by producing competent evidence
that the Union in fact did not represent a majority on Au-
gust 11, when the Company announced its withdrawal de-
cision, or by establishing a good-faith and reasonably
grounded doubt. Moreover, I find that even if the Union
had lost its majority status on August II11, or if the Com-
pany's refusal to bargain was predicated upon a reasonably
grounded doubt of majority status, "the majority issue
must not have been raised by the employer in a context of
illegal antiunion activities . . . aimed at causing disaffec-
tion from the union or indicating that in raising the majori-
ty issue the employer was merely seeking to gain time in
which to undermine the union." Celanese Corporation of
America, 95 NLRB 664, 673 (1951), as quoted in Colonial
Manor Convalescent & Nursing Center, 188 NLRB 861
(1971). In the present case, as found, the Company en-
gaged in unfair labor practices (threatening plant closure in
the context of antiunion statements and after canceling a
scheduled negotiating meeting, and permitting the circula-
tion of decertification petitions under coercive circum-
stances) which are of "such a character as to either affect
the Union's status, cause employee disaffection, or improp-
erly affect the bargaining relationship itself." Ibid. Under
these circumstances, the Company was precluded from re-
butting the Union's presumed majority.
I therefore find that the Company violated Section
8(a)(5) and (1) of the Act by announcing on August I1 that
it was withdrawing recognition from the Union and there-
after refusing to bargain with the Union. Having so found,
I also find that on December 8, when it granted a unilateral
9-percent wage increase to all of the bargaining unit em-
ployees, retroactive to August I, it further violated Section
8(a)(5) and (1), as alleged in the complaint.
CONCLUSIONS OF LAW
1. By threatening plant closure and by permitting the
circulation of union decertification petitions under coer-
cive circumstances, the Company engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)( ) and 2(6) and (7) of the Act.
2. By withdrawing recognition of the Union and refus-
ing to bargain since August 11, 1977, the Company vio-
lated Section 8(a)(5) and (I) of the Act.
3. By granting a unilateral 9-percent wage increase to all
bargaining unit employees on December 8, 1977, the Com-
pany further violated Section 8(aX5) and (1) of the Act.
4. The General Counsel failed to prove that the Compa-
ny unlawfully created an impression of surveillance of the
employees' union activities.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act as set
forth in the Order below.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER3
The Respondent, Hermitage Hospital Products, a Divi-
sion of Hermitage, Inc., Niantic, Connecticut, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening to close the plant to keep out a union.
(b) Coercing employees to sign a union decertification
petition.
(c) Unlawfully withdrawing recognition of, or refusing
to bargain with, United Steelworkers of America. AFL-
CIO, Local Union 14120, as the exclusive representative of
its employees in the following appropriate unit:
All employees at the Employer's Niantic, Connecticut
plant, excluding executives, office and clerical em-
ployees, sales employees, guards, watchmen, firemen,
In the event no exceptions are filed as provided b) Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations. be adopted b) the Board and become
its findings. conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and foremen. foreladies, and other supervisors as de-
fined in the Act.
(d) Unilaterally granting any future wage increase to
bargaining unit employees without notifying and bargain-
ing with the Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain in good faith with the Union
as the exclusive representative of the employees in the
above-described appropriate unit and embody in a signed
agreement any understanding reached.
(b) Post at its plant in Niantic, Connecticut, copies of
the attached notice marked "Appendix." 4 Copies of the
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
(c) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close our plant to keep out
a union.
WE WILL NOT coerce any of our employees to sign a
union decertification petition.
WE WILL NOT grant any future wage increase without
notifying and bargaining with the Union.
WE WIl.L NOT in any like or related manner interfere
with your rights under Section 7 of the Act.
WE WILL bargain with United Steelworkers of Amer-
ica, AFL-CIO, Local Union 14120, and put in writing
and sign any bargaining agreement we reach covering
these employees:
All employees at our Niantic, Connecticut plant ex-
cluding executives, office and clerical employees,
sales employees, guards, watchmen, firemen, and
foremen, foreladies, and other supervisors.
HERMITAGE HOSPITAL PRODUCTS, A DIVISION OF
HERMITAGE. INC.
222