Klein's Golden Manor

National Labor Relations Board - Board Decisions

Nov 8, 1974

214 N.L.R.B. 807 (N.L.R.B. 1974)

KLEIN'S GOLDEN MANOR
Milton Kline and Jacob Kline a Co-Partnership,
d/b/a Klein's Golden Manor and Local 1115, Joint
Board , Nursing Home and Hospital Employees Di-
vision and Local 4, Medical & Health Employees
Union, Party to the Contract
Milton Kline and Jacob Kline a Co-Partnership,
d/b/a Klein's Golden Manor and Local 1115, Joint
Board , Nursing Home and Hospital Employees Di-
vision and Albert Young . Cases 29-CA-3515, 29-
CA-3621, and 29-CA-3621-2
November 8, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 30, 1974, Administrative Law Judge Ar-
thur Leff issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party 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,' and
conclusions 2 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 complaint be, and it hereby is, dis-
missed in its entirety.
i In the 4th and 10th paragraphs of sec III , B, the Administrative Law
Judge referred to July 13, 1973, instead of July 3, 1973 He also stated in the
penultimate paragraph in sec III , C, that the minimum complement of
employees required by General Extrusion Company, Inc, 121 NLRB 1165
(1958), is 50 rather than 30 percent We hereby correct these inadvertent
errors
Member Kennedy does not adopt the Administrative Law Judge's con-
clusion that the General Extrusion standards, with respect to a contract-bar
issue , are to be given determinative weight in a complaint case in his opin-
ion, the Board utilized the proper procedure in Prince Pontiac, Inc, 174
NLRB 919 (1969), when compliance with the requirements of General Ex-
trusion was viewed as one of "several " factors-but not the determinative
factor-to be considered in ascertaining the existence of a representative
complement Moreover , the majority's reliance on the Trial Examiner's De-
cision in American Beef Packers, Inc, 180 NLRB 634, 639-641 (1970), is
inappropriate In that case , the Board adopted the Trial Examiner's findings
only to the extent that they were consistent with the Board's decision In In
3 of its opinion , the Board , unlike the Trial Examiner, conspicuously refused
to rely upon General Extrusion and instead relied on Prince Pontiac, Inc,
and other cases However , Member Kennedy agrees in the instant case that
there was a representative complement of employees when the Union was
recognized and the contract signed
DECISION
STATEMENT OF THE CASE
807
ARTHUR LEFF, Administrative Law Judge: These cases
were initiated by charges against Respondent, Klein's
Golden Manor, filed by Local 1115, Joint Board Nursing
Home & Hospital Employees Division in Case 29-
CA-3515 on August 22, 1973 (amended August 30, 1973),
and in Case 29-CA-3621 on November 5, 1973, and by
Albert Young in Case 29-CA-3621-2 on December 5,
1973. Based upon such charges, the General Counsel of the
National Labor Relations Board, by the Regional Director
of Region 29, having duly consolidated these cases pur-
suant to Section 102.33 of the Board's Rules and Regula-
tions, issued, on December 28, 1973, a consolidated com-
plaint alleging that Respondent had engaged in unfair la-
bor practices within the meaning of Sections 8(a)(1), (2),
and (3) and 2(6) and (7) of the National Labor Relations
Act, as amended. Copies of the complaint and a notice of
hearing were duly served upon Respondent and also upon
Local 4, Medical and Health Employees Union, which was
named in Case 29-CA-3515 as a Party to the Contract.
With respect to the unfair labor practices, the complaint
as amended at the hearing alleged in substance:
1. That Respondent in violation of Section 8(a)(2) and
(1) of the Act rendered unlawful assistance and support to
Local 4, beginning on or about June 29, 1973, by (a) at-
tending and participating in meetings of Local 4 at
Respondent's premises ; (b) permitting Local 4 representa-
tives to come on its premises during working hours to soli-
cit its employees for membership and to conduct other
union business; (c) refusing to accord to Local 1115 the
privileges accorded Local 4 referred to in (b) above; (d)
recognizing Local 4, on or about July 5, 1973, as the collec-
tive-bargaining representative of its employees, thereafter
engaging in collective bargaining with Local 4, and, on or
about July 13, 1973, executing a collective-bargaining
agreement with Local 4, although at the time of the occur-
rence of these events (i) Local 4 did not represent an un-
coerced majority of Respondent's employees, and (ii) Re-
spondent did not yet employ a representative complement
of employees in the bargaining unit for which it accorded
Local 4 representative status.
2. That Respondent violated Section 8(a)(3) and (1) of
the Act, as well as Section 8(a)(2), by maintaining in effect
and enforcing after July 13, 1973, the collective-bargaining
agreement which it allegedly unlawfully entered into with
Local 4 on that date and which contained, inter alia, union-
security provisions requiring Respondent's employees to
1 Contrary to Member Kennedy, it is well established that the standards
of General Extrusion Company, Inc, supra, which pertain to the contract-
bar issue in the representation cases, may also be given determinative weight
in unfair labor practice cases for the purpose of ascertaining whether an
employer has a representative complement of employees at the time it rec-
ognizes and enters into a contract with a labor organization . See American
Beef Packers, inc, supra, wherein the Board relied solely on General Extru-
sion standards
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintain membership in and pay dues to Local 4 as a con-
dition of employment.
3. That Respondent violated Section 8(a)(1) of the Act
on various dates beginning on or about July 27, 1973, by
(a) interrogating its employees concerning their member-
ship in , activities on behalf of, and sympathy for Local
1115; (b) creating the impression that it was keeping under
surveillance the meetings and activities of Local 1115; (c)
warning and directing its employees to refrain from be-
coming members of, assisting , or supporting Local 1115;
(d) threatening employees with reprisals if they became,
remained members of , or assisted and supported Local
1115; (e) authorizing and permitting the circulation among
its employees of a petition supporting Local 4 in opposition
to Local 1115, and inducing and soliciting employee signa-
tures to that petition ; (f) coercing employees to furnish
false affidavits in connection with the investigation of these
cases, and (g) threatening witnesses with bodily injury if
they gave testimony adverse to Respondent in this pro-
ceeding.
4. That Respondent violated Section 8(a)(3) and (1) of
the Act by discharging its employees Joel Kramer and Al-
bert Young on August 22, 1973, and Anthony Lopez on
October 5, 1973, because they had joined and assisted Lo-
cal 1115 and had engaged in activities in opposition to
Local 4.
Respondent in its duly filed answer and at the hearing
denied the commission of all the alleged unfair labor prac-
tices.
A hearing, in which all parties , including Local 4, par-
ticipated through counsel , was held before me at Brooklyn,
New York, on various dates between March 1 and 15,
1974.
On the last day of the hearing the General Counsel, the
Charging Parties, and Respondent entered into and execu-
ted a stipulation whereby they mutually agreed to settle all
the 8 (a)(1) and (3) allegations of the complaint summarized
in paragraphs 3 and 4 above. The settlement stipulation,
approved by me but subject to the further approval of the
Board before it becomes effective , provides, inter aka, for
the entry of a Board order and court decree requiring Re-
spondent to cease and desist from engaging in the specific
conduct set out in the allegations of the complaint referred
to in paragraphs 3 and 4 above and, generally, from engag-
ing in conduct violative of Section 8(a)(1) and (3) of the
Act; to offer Albert Young and Anthony Lopez reinstate-
ment to their former or substantially equivalent positions;
to make whole Young and Lopez, as well as Joel Kramer-
who stated that he did not desire reinstatement-for the
loss of pay they suffered by reason of the alleged discrimi-
nation against them by paying to each of them the amount
specified in the stipulation as reflecting his loss of pay The
stipulation , however, expressly provides that nothing there-
in contained is to be deemed an admission by Respondent
that it has violated the Act.
Following the execution of the aforesaid settlement stip-
ulation , the General Counsel moved to sever from the con-
solidated complaint those allegations thereof that are em-
braced by the settlement agreement , thereby leaving for
decision in this case only those 8(a)(1), (2), and (3) allega-
tions that are contained in paragraphs 7 through 13 of the
consolidated complaint, as hereinabove summarized in
paragraphs I and 2. The motion to sever was granted.
Briefs relating to the issues left for disposition in this
proceeding were filed by the General Counsel and by Re-
spondent and Local 4 jointly on May 3, 1974.
Upon the entire record in this case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a copartnership composed of Milton Kline
and Jacob Kline, doing business under the trade name and
style of Klein's Golden Manor, and having its principal
office and place of business at 3602 Mermaid Avenue,
Brooklyn, New York, is engaged in operating a home and
providing related care and recreational facilities for the
aged at the address stated above. Since August 1, 1973,
when Respondent began its normal operations , Respon-
dent has derived gross revenue from such operations at an
annual rate in excess of $100 ,000. Respondent 's indirect
purchases of foods, beverages , and other goods and materi-
als from sources outside the State of New York have been
at an annual rate in excess of $50,000. Respondent admits
that at all times material herein it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and it is so found.
11. THE LABOR ORGANIZATIONS INVOLVED
Local 1115, Joint Board , Nursing Home & Hospital Em-
ployees Division, herein referred to as Local 1115, and Lo-
cal 4, Medical & Health Employees Union , herein referred
to as Local 4, is each a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues; Sequence of Events
The thrust of the complaint 's allegations remaining for
disposition in this case is to the effect that Respondent, in
violation of Section 8(a)(2) and ( 1), recognized and entered
into a collective -bargaining agreement with Local 4, an
employer-assisted union , at a time when Local 4 had not
been duly designated by an uncoerced majority of employ-
ees in the unit covered by the contract, and at a time,
moreover, when Respondent did not yet employ a repre-
sentative complement of employees in that unit. These alle-
gations are denied by Respondent and disputed also by
Local 4 which is named in the complaint as party to the
contract . The determination to be made of the 8(a)(3) and
(1) allegations still left in this case is entirely dependent on
the resolution that is made of the 8 (a)(2) and ( 1) issues. The
8(a)(3) allegations are based solely on Respondent 's admit-
ted maintenance and enforcement of the not otherwise un-
lawful union-security provisions contained in the alleged
unlawful contract.
On the two issues that have been stated , the parties are
in sharp disagreement as to the facts. The conflicting testi-
mony can be meaningfully assessed only after a sequential
KLEIN'S GOLDEN MANOR
account has been presented of other facts of this case
which I am satisfied the record clearly establishes. Conse-
quently, the recital of facts appearing in this subsection of
the Decision, while indicating the matters in conflict, will
defer their detailed consideration, and resolution, for sub-
sections to follow.
Klein's Golden Manor is a home for elderly people,
commonly known as a senior citizens ' hotel, that is licensed
by the State of New York. It provides housing, feeding,
and recreational facilities for its residents. It is housed in a
new building, located in the Coney Island section of
Brooklyn, New York, that was constructed for it by A.G.E.
Development Corporation, a company owned and con-
trolled by Milton Kline who, along with his son, Jacob, is a
copartner of Respondent. The building was completed in
June 1973. However, the Golden Manor did not open for
business until August 1, 1973, when Respondent first re-
ceived authorization to do so from the State regulatory
agency. The Golden Manor is capable of accommodating
150 residents. It has been virtually fully occupied for some
time . When normal operations began on August 1, 1973,
the Golden Manor had 20 nonsupervisory employees on its
staff, including housekeeping, kitchen, dining room, and
maintenance personnel. During the balance of August and
continuing through October 1973, the size of its nonsuper-
visory employee complement varied from a minimum of 17
to a maximum of 20; the average was 20 During the fol-
lowing months-figures are in evidence only to the end of
1973-the average employee complement was 26.
About 2 months before the start of actual operations, in
anticipation that the State authorization to operate would
soon be forthcoming, Respondent began to staff the work
force it would require for the operation of the Golden
Manor. During this period it hired employees who were to
occupy positions as cook, as kitchen help, as dining room
waitresses , as housekeepers, and as porters and as mainte-
nance men-virtually all the job classifications the Golden
Manor required. While waiting for the actual opening of
the Golden Manor these employees were assigned to work
in cleaning up the rooms, setting up furniture and equip-
ment , and performing other preparatory work to ready the
Golden Manor for its normal operations. Some of the em-
ployees so hired were initially carried on the payroll of
A.G.E. Development Corporation. There is a disagreement
between the General Counsel, on the one hand, and Re-
spondent and Local 4, on the other hand, as to the number
of employees who, for purposes of determining the repre-
sentative complement issue , may properly be considered as
employees of Respondent during this period. As will later
appear, the significant dates are July 3, when Local 4 first
obtained designation cards from the employees and de-
manded recognition, July 10, when, as I find below, Re-
spondent accorded recognition to Local 4, and July 13,
when Respondent executed the collective-bargaining con-
tract with Local 4. The General Counsel asserts that during
the payroll period ending July 6, which includes July 3,
Respondent had only 8 nonsupervisory employees, but Re-
spondent and Local 4 claim that Respondent then had
about 16 employees actually working for it. The General
Counsel asserts that during the payroll period ending July
13, which includes the recognition and contract execution
809
dates, Respondent had only 11 nonsupervisory employees,
but Respondent and Local 4 contend that Respondent
then had 19 or more such employees. The evidence relating
to this issue will be discussed, and the issue resolved, in
subsection C, infra.
Prior to July 3, 1973, no effort was made by any labor
organization to organize Respondent's employees.
On July 3, 1973, Robert Gordon, the president of Local
4, called at the Golden Manor, held a meeting with all the
employees working at Golden Manor's premises that day,
and obtained from all the employees attending the meeting
signed cards designating Local 4 as their bargaining repre-
sentative . Local 4 introduced into evidence 12 signed desig-
nation cards bearing a July 3, 1973, execution date, of
which 7 are those of employees who General Counsel con-
cedes were on Golden Manor's payroll on that day.' The
issue of fact litigated at greatest length at the hearing re-
lates to Respondent's participation, if any, at the meeting
of Gordon with the employees on July 3. The General
Counsel contends that that meeting was conducted with
the advance knowledge and approval of Respondent's
management ; that Milton Kline was present at the meeting
when the cards were signed; and that he affirmatively sup-
ported and aided Local 4 in its solicitation activity. All of
this is vigorously disputed by Respondent and Local 4.
Both deny that Respondent and Local 4, or any of their
respective representatives, had any contact with each other
prior to the meeting.They also deny that Milton Kline, or
any other representative of Respondent, was present at the
meeting , or was even aware of it until after it was held.
Resolution of these factual issues turns mainly on an as-
sessment of witness credibility. The conflicting testimony
will be considered in detail in the next subsection of this
Decision.
By letter dated July 3, 1973, Gordon advised Respon-
dent that Local 4 represented the employees at Golden
Manor and requested a meeting to begin contract negotia-
tions. On July 6, after a follow-up call from Gordon, Mil-
ton Kline agreed to meet with Gordon. The meeting held
later that day was also attended by Jacob Kline. At that
meeting, Gordon showed the Klines the 12 designation
cards obtained on July 3, the authenticity of which they
did not question, and also submitted to the Klines a copy
of the contract which he wanted Respondent to sign. No
contract negotiations were conducted at this meeting, nor
did Respondent at that time formally agree to recognize
Local 4. Milton Kline testified that before dealing with
Local 4, he wanted first to check up on the legitimacy of
Local 4's claimed status as a labor organization, and that
he later did so through his attorney who advised him with-
in the next day or so that his investigation had disclosed
that Local 4 was a "certified" union.
On July 10, the Klines again met with Gordon. Also
present at that meeting were Morris Dickens and Fred
Cox, Respondent's employees who at the July 3 meeting
had been designated, respectively, as Local 4's shop stew-
ard and assistant shop steward. At this meeting , Respon-
1 The eighth employee conceded by the General Counsel to have been on
Golden Manor's payroll that week signed a Local 4 designation card on
July 11, 1973
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent in effect accorded recognition to Local 4 by entering
into negotiations with it concerning contract terms.
On July 13, 1973, Respondent and Local 4 executed a
collective-bargaining agreement under which Respondent
recognized Local 4 as the bargaining agent of its employees
at Golden Manor in a unit stated to consist of "all its full-
time and regular part-time employees and working staff,
including all office clerical employees, counsellors, admin-
istrative employees, orderlies, and maintenance and clean-
ing employees, as defined in the National Labor Relations
Act." 2 It is not disputed that by July 13, 1973, all but two
of the nonsupervisory employees then working for Respon-
dent at Golden Manor had signed cards designating Local
4 as their bargaining agent. This is so whether one accepts
the General Counsel's position or that of Respondent and
Local 4 concerning the identity and number of employees
who may properly be found employees of Respondent at
that time. One of the exceptions was Joel Kramer who was
hired as a cook on July 10. Kramer signed a Local 4 desig-
nation card about a week later. The collective-bargaining
agreement executed on July 13 was for a 3-year term, but
with an annual option given Local 4 to request on appro-
priate notice a reopening for the renegotiation of the agree-
ment with respect to hours, wages, and working conditions.
The agreement contained, inter aha, a union-security
clause requiring as a condition of employment that em-
ployees then members of Local 4 maintain their member-
ship in that union, and that all other employees become
members of Local 4 after 30 days of employment or the
execution date of the agreement, whichever was later. The
agreement did not call for any immediate change in ex-
isting wage rates, but did provide for a 4-percent general
wage increase at the end of the first and second years of
the contract. The agreement also contained provisions, in-
ter alga, for seniority rights on layoff and recall, for paid
holidays and vacations, for 6 compensated sick leave days
per year, for $1,500 life insurance beginning with the sec-
ond year of employment, and for grievance and arbitration
procedures. Respondent had not theretofore had any un-
derstanding with its employees concerning holidays, vaca-
tions, sick leave, and life insurance. The provisions for
these items, as well as one which permitted Respondent
under specified circumstances to subject its employees to
physical examinations as a condition to continued employ-
ment, varied from provisions contained in the form con-
tract which Local 4 had presented to Respondent, and
were embodied in a rider attached to the contract.
The record reflects that after the collective-bargaining
contract was executed, meetings of Gordon with
Respondent's employees were conducted on several occa-
sions during working hours on Golden Manor's premises.
But these meetings have no material relevancy to the basic
issue left for determination in this case; i.e., whether the
contract executed on July 13, 1973, was invalid when
made. The fact that Respondent may have permitted such
post-contract meetings on its premises during working
hours would provide, at most, added evidence of employer
2 A rider attached to the contract, which states the starting wages, refers,
however, only to the following classifications Chef, assistant cook, mainte-
nance chief, assistant chief, all maintenance, all household
support, if, but only if, it is first determined that Local 4
was not then entitled to lawful representative status. One
such post-contract meeting does require special mention,
however, because of its relevance in the assessment of cer-
tain testimony to be discussed in the next subsection here-
in. This appears to have been the only employee meeting,
at least during the post-contract period, at which Gordon
and Milton Kline were both present. That meeting was
held in the latter part of July, probably about July 26. It
was called after some of the employees in the contract unit,
who were unhappy about the absence in the contract of
any provision for health and hospital benefits, and also
because of an asserted failure of Respondent to comply
with the overtime provisions of the contract, had requested
a meeting with Gordon to discuss these subjects. Following
a discussion of these subjects between Gordon and the em-
ployees, Milton Kline was invited, at the suggestion of cer-
tain employees, to come to this meeting so that the matter
might be taken up directly with him. At that meeting,
Kline, who came there with his son, told the employees
that he could not afford medical benefits at that time, but
promised to make his own doctor available for the treat-
ment of employees' illnesses without cost to the employees.
Local 1115, the Charging Party in Cases 29-CA-3515
and 29-CA-3621, made no effort to organize Respondent's
employees until some time toward the end of July 1973,
after the contract between Respondent and Local 4 had
been entered into. The initiation of Local 1115's organiza-
tional effort followed a visit to Kline on July 24, 1973, by
Alex de Laurentis, the secretary-treasurer of Local 1115,
and Hyman Juvall, one of its representatives, during
which, I find, Milton Kline advised them that
Respondent's employees were already represented by Lo-
cal 4.3 On July 30, 1973, de Laurentis addressed a letter to
Milton Kline in which he asserted that Kline had told him
at their July 24 meeting that several weeks earlier he had
permitted Gordon to come on Golden Manor's premises to
speak to employees about joining Local 4, and that he had
also permitted Gordon to hold a meeting on Golden
Manor's premises on July 26. De Laurentis requested the
same opportunity to speak on behalf of Local 1115 to
Respondent's employees. Kline in his letter in response
took issue with de Laurentis' assertion that he had permit-
ted Gordon to solicit employees for Local 4 membership
on Golden Manor's premises. He advised de Laurentis that
the only meeting he knew of on his premises was the one
on July 26, subsequent to the execution of the contract,
which had been held "for the purpose of disposing of a
question that has arisen." Kline rejected Local 1115's re-
quest for an opportunity to meet with employees on
3 Juvall testified, contrary to Milton Kline, that Kline told the Local 1115
representatives at their meeting that although Respondent had a contract
with Local 4, Kline "really [hadn't] signed it yet " Juvall further testified
that while he and de Laurentis were in Kline's office, Kline received a
telephone call from Gordon and that he heard Kline say, "Well, what is the
hurry about signing d9" Juvall's testimony in this, as well as in certain other
respects , impressed me when given as improvised and contrived He conced-
ed on cross-examination that in his prehearing affidavit he had made no
mention of the strangely coincidental overheard conversation I do not cred-
it his testimony relating to the statements attributed by him to Kline, as
mentioned above
KLEIN'S GOLDEN MANOR
Respondent's premises "since our employees have already
chosen a collective-bargaining agent."
It was stipulated that Respondent, at all times since the
execution of its collective-bargaming agreement with Local
4, has continued to maintain and give effect to the union-
security provisions of that agreement, and that, pursuant to
such provisions and signed checkoff authorizations, it has
deducted monies from the wages of its employees for union
dues, remitting such monies to Local 4.
B. Consideration and Analysis of the Evidence Relating to
the Issue of Respondent's Alleged Assistance and Support of
Local 4's Organizational Activity, and Concluding Findings
with Respect Thereto
As noted above, the factual premise on which the Gener-
al Counsel would support his contention that Respondent
unlawfully assisted and supported Local 4 is that Respon-
dent authorized President Gordon of Local 4 to meet with
its employees on its premises during working hours on July
3, 1973, and thereby, and by Milton Kline's presence and
participation in that meeting, induced its employees to join
Local 4. The validity of that factual premise is disputed in
all its aspects by Respondent and Local 4.
Respondent's account (and that of Local 4 as well) of the
meeting of July 3, how it came about and what occurred at
it, was presented through the testimony of Gordon. His
testimony was supplemented by that of Respondent's wit-
nesses, Morris Dickens, Glenda Ghee, and Wilma Mat-
thews. The three individuals last named were at the time in
question, and still are, employees of Respondent.4 The tes-
timony of these witnesses with regard to the meeting,
though not without discrepancies as to some details, is gen-
erally consistent and mutually corroborative in major re-
spects.
According to the composite account of Respondent's
witnesses, the following took place on July 3. Gordon came
to the Manor that day, uninvited, not having had any pre-
vious contact with Respondent's management or any of
Respondent's employees. He found Dickens in the lobby,
introduced himself as a union representative who could
negotiate for the employees, and ascertained from Dickens
that the latter was interested in having such union repre-
sentation. Dickens asked Gordon to wait in the lobby.
Shortly thereafter, Dickens returned with employee Fred
Cox, who, like Dickens, was then employed as a porter and
general maintenance man at the Manor. Dickens and Cox
told Gordon that they would assemble the employees so
that he could speak to them. No management representa-
tive was around at the time, nor was any management rep-
resentative consulted to obtain permission to assemble the
employees. While Gordon waited, Dickens and Cox round-
ed up all the employees then working on the premises-
Dickens testified he used the Manor's intercom in contact-
ing employees-and asked them to assemble in the televi-
sion lounge on the third floor. After the employees had
assembled, Dickens and Cox brought Gordon to the third
floor meeting place where Gordon spoke to the employees
4 Dickens is also Local 4's shop steward at the Golden Manor, Matthews,
a waitress at the Manor, is his wife, and Glenda Ghee. formerly a floor girl,
is now the assistant bookkeeper at the Manor
811
about the advantages of union organization, emphasizing
particularly job security. Various questions were asked by
the employees and answered. The employees then took a
vote, and all agreed to join Local 4. Designation cards of
that union were then passed out and were signed by all the
employees present. Neither of the Klines, nor any other
management representative, was present at the meeting at
any time; the Respondent's witnesses were unanimous and
firm in their testimony to that effect.
Both Gordon and the Klines testified that prior to July
13, there had been no contact between Respondent and
Local 4 of any kind whatever. There is no evidence in this
record to the contrary. Nor, according to them, was there
any on July 13; the Klines testified that they did not ac-
quire knowledge of that meeting, or even knew of the exis-
tence of Local 4, until some time later. The only thing in
this record to the contrary is the testimony of several of the
General Counsel's witnesses presently to be considered and
assessed.
Opposed to the testimony of Respondent's witnesses,
there is testimony by some of the General Counsel's wit-
nesses to the effect that Milton Kline not only knew about,
but was actually present at the meeting of July 3. In all, the
General Counsel called to the stand six employees who
were at that meeting. Four of them in their direct examina-
tion identified Milton Kline as having been there; the other
two did not. Because the credibility of the witnesses is crit-
ical to the resolution of the issue under consideration, their
testimony will be individually examined in detail.
Frances Cox, the wife of Fred Cox, was called to the
stand twice, once as a witness for the General Counsel and
later in the hearing as a witness for Respondent. Under
direct examination by the General Counsel she testified as
follows: She was present at the July 3 meeting called by
Dickens and her husband. She was asked to come to that
meeting by Dickens who told her that there was a union
man in the building who wanted to talk to the employees.
Milton Kline came to that meeting after it began at the
request of the employees. There was a discussion at the
meeting about medical benefits. Gordon advised the em-
ployees that it would be a year before they could get such
benefits At this point Kline interjected that the employees
had nothing to worry about as they "could see his doctor."
When the designation cards were distributed for signature,
Frances Cox asked Kline whether it was all right for her to
sign; Kline told her it was all right with him if the employ-
ees were "satisfied with the union." With that assurance
from Kline she signed; she would not have done so other-
wise.
Under cross-examination, however, Frances Cox contra-
dicted her direct testimony in material respects. She now
testified that she had directed her inquiry at the July 3
meeting as to whether it was all right to sign the card to
Dickens and her husband, not to Kline; that she signed the
card upon her husband's assurance that it was okay; and
that she did notice Kline at the meeting at the time she
signed her card. Cross-examination also disclosed consid-
erable confusion on the witness' part as to whether the
meeting at which she says she saw Kline was the July 3
meeting or the meeting, earlier adverted to, that was held
late in July. The latter meeting, it will be recalled, was the
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one at which Gordon was present in response to employee
complaints about the contract 's failure to provide for medi-
cal benefits , and the one to which Milton Kline was sum-
moned , after it began , at the request of employees . Frances
Cox testified that she saw Milton Kline at only one meet-
ing at which both he and Gordon were present ; that she
recalled seeing Kline at the late July meeting; and that she
could not recall whether the discussion of benefits about
which she had testified in her direct examination occurred
at the July 3 meeting or at the meeting held later that
month.
On her second appearance on the stand, this time as a
witness for Respondent, Frances Cox, repudiating her ear-
lier testimony in this respect as "untrue," stated unequivo-
cally that Milton Kline was not present at the July 3 meet-
ing at which she signed her card.5 Under all the circum-
stances related above, I believe that Frances Cox's
testimony requires complete rejection and that no evidenti-
ary weight can be given to her earlier assertion that Milton
Kline was present at the July 3 meeting.
Fred Cox testified in substance that on July 3, prior to
the meeting that day, he saw Dickens and Gordon walking
away from Milton Kline; that Dickens then introduced
him to Gordon and suggested that they call a meeting of
employees; that the meeting was called with the knowledge
and approval of Milton Kline; that Kline joined the meet-
ing toward its end after Gordon had stated that employees
would not receive medical benefits for a year; that Kline
told the employees that his doctor would take care of their
medical needs; and that after Kline made that statement
"a lot of people finished out their signing of cards."
The foregoing summary makes Fred Cox's testimony ap-
pear more clear and definite than actually it was. His testi-
mony, as a reading of it will disclose, was in many material
respects garbled, confusing, and replete with contradic-
tions, especially as it related to his asserted observations of
and contacts with Milton Kline that morning. But of more
pointed significance is the fact that his testimony concern-
ing Kline's knowledge and authorization of the July 13
meeting is in direct conflict with his sworn prehearing
statement to the Board, wherein he had declared, "The
Boss did not know anything about this meeting." 6 The
General Counsel attempted at the hearing to show that
Cox had been improperly influenced by Milton Kline to
make the quoted declaration. But he was unsuccessful in
his effort to explain the contradiction on that basis. Cox
did testify that, before giving the statement to the Board
agent, Milton Kline had told him to get together with
Dickens on a story about the firing of Joel Kramer, who
had been alleged in the charge as an 8(a)(3) discriminatee.
But Cox also testified that Kline never suggested to him
that he falsify that portion of his statement which dealt
5 Frances Cox thereafter resolutely stood by that statement despite vigor-
ous and lengthy cross-examination by the able counsel for the General
Counsel , cross-examination which only served to establish beyond doubt
her irresponsibility as a witness and her utter disregard for the sanctity of an
oath , either on this or on earlier occasions , or on both
6 Fred Cox's prehearing statement also discloses that the employee meet-
ing with Gordon at which medical benefits were discussed, and to which
Kline was invited, occurred later that month-"around July 16." according
to Cox's statement
with the manner in which the cards were obtained. Cox's
attitude while testifying was more that of a partisan than
that of a disinterested witness. His demeanor while testify-
ing reflected that he was motivated by a strong hostility
toward Respondent and a conscious purpose to aid Local
1115.1 All of the foregoing considerations, plus certain evi-
dence in the record relating to his background, militate
against attaching credibility to the testimony he gave on
the matter at issue.
Helen Charles testified that, although Milton Kline was
not present at the entire meeting at which the cards were
signed, he "was in," and that she believed, although she
was not sure, that Jacob Kline was also there. Her further
testimony, however, reflected uncertainty. Thus, when
asked at a later point whether Milton Kline was present
when cards were signed, she answered, "I think so." Her
further testimony also makes clear that she had the meet-
ing of July 3 confused in her mind with the subsequent
meeting in late July to which reference has been made
above. Thus, she fixed the place of the meeting on the
fourth floor. This is where the later meeting was held; the
earlier meeting, it was generally agreed, was on the third
floor. Thus, also, Charles testified that at the meeting to
which she referred there was "talk" that the contract was
silent about medical benefits; that the employees were told
by Gordon that Local 4 could not take care of this for a
year; and that they were then advised by Kline that he
personally would take care of the matter by providing em-
ployees with the services of his own doctor. Charles testi-
fied on cross-examination that these statements were made
after Gordon had explained that the contract between Re-
spondent and Local 4 made no provision for medical insur-
ance coverage. As the contract was executed on July 13,
1973, obviously this could not have occurred on July 3,
1973. Other aspects of Charles' testimony also serve to im-
pair her credibility as a witness .8
William Arroyo, the only other witness to place Milton
Kline at the July 3 meeting-the only meeting at which he
says he saw both Gordon and Kline-also testified that
there was a discussion at that meeting about the absence of
medical benefits. His testimony relating to that discussion
and the remarks made with reference thereto parallels in
almost identical language the testimony of Charles. In
these circumstances , it is reasonable to infer that , as in the
case of Charles, the events at the July 3 meeting and those
of the meeting later that month may have become commin-
gled and confused in his recollection during the 9 months
that elapsed between the dates of these events and the date
of his testimony. It is noted that Arroyo, like Charles, was
not interviewed by a Board agent until the date he testified,
and, also like Charles, did not have the benefit of an earlier
prehearing statement with which to refresh his memory.
The vague, vacillating, and uncertain manner in which he
This is also reflected by evidence in the record showing that during the
period of the hearing he engaged in efforts to solicit other former employees
to appear as witnesses against Respondent
B Helen Charles testified on cross-examination that she never told anyone
before coming to the hearing that Kline was at the meeting at which she
signed her card Her contradictory testimony thereafter as to how she hap-
pened to come to the hearing disclosed a lack of candor on her part it
appears that this witness was solicited to testify by Fred Cox and was not
interviewed by any Board agent until shortly before she took the stand
KLEIN'S GOLDEN MANOR
responded to questions about dates, time sequences, and
other details-as the transcript of his testimony reflects-
serves to confirm that his recollection was, to say the least,
an unclear one.' Arroyo did not impress me as a witness
whose testimony invites credence. In certain other respects,
his testimony was patently implausible. And he had an evi-
dent bias against Respondent, having been fired by Milton
Kline for reasons he thought unfair.
In assessing the credibility of the General Counsel's wit-
nesses who placed Kline at the cardsigning meeting, I con-
sider it of particular significance that their testimony is not
supported by that of the two other witnesses for the Gener-
al Counsel-Albert Young and Anthony Lopez-who also
were present at that meeting. Lopez testified that he did
not remember seeing Kline at that meeting. And Young
testified more positively that neither of the Klines was pre-
sent at that meeting while he was there. Both Young and
Lopez, prior to the order of severance, were alleged in the
complaint to have been victims of Section 8(a)(3) discrimi-
nation by Respondent. As the 8(a)(2) issue under consider-
ation was relevant to the question of unlawful motivation
in their discharge cases, they obviously had no interest in
falsifying the testimony they gave relating to Kline's pres-
ence at the meeting.10 Young, in addition, was one of the
charging parties in this proceeding, and, as such, was more
likely than, say, Arroyo or Helen Charles, to retain a pre-
cise recollection of events pertinent to the issues in this
case. Young, by his demeanor and overall testimony, im-
pressed me as the most reliable of the General Counsel's
witnesses who testified on the matter in question. The Gen-
eral Counsel in his brief seeks to reconcile Young's testi-
mony with the conflicting testimony of his other witnesses
by pointing to Young's testimony that he came to the meet-
ing sometime after it began. From this he would have me
infer that Kline must have left the meeting before Young
arrived. But I do not believe the evidence fairly supports
such an inference. Young testified that cards were still
being distributed when he came to the meeting, although
some of the employees were then already in the process of
filling them out. But, if the other General Counsel's wit-
nesses are to be credited in full, this would include the time
when Kline was at the meeting.
In sum, I am persuaded on all the evidence and from my
observation of the witnesses, that the stamp of credibility
cannot be attached to the testimony adverted to that would
place Milton Kline at the meeting at which the Local 4
designation cards were signed. This is not to say that those
who testified for Respondent to the contrary all impressed
9 This, however, may be a charitable view It appears that Arroyo, like
Charles, was solicited by Fred Cox after the hearing began to appear as a
witness According to Arroyo, Cox was the only person with whom he dis-
cussed the subject of his testimony before volunteering to testify I regard it
as not without significance that the only other witnesses who placed the
medical benefits discussion at the meeting at which cards were signed were
Cox himself, Cox's wife (in her initial testimony), and Helen Charles, whose
testimony was also solicited by Cox And Cox's own testimony in that re-
spect has been shown to be unworthy of belief largely because of the contra-
dictory prehearing statement he gave
10 Joel Kramer, the third alleged discrimmatee, was not present at the July
3 meeting, having been hired on July 10 His testimony, however, supports
the finding made above that the subject of medical benefits was discussed at
a later meeting in July at which Gordon and Kline were present
813
me as witnesses of unquestionable reliability. That is not
so. But the burden was on the General Counsel to establish
by a fair preponderance of credible evidence his claim that
Respondent, through Milton Kline, aided and supported
Local 4 by attending and participating in the meeting on its
premises at which Local 4 designation cards were solicited
and obtained. Whatever reservations I may have about the
reliability of at least some of Respondent 's witnesses on
other matters, on that particular item I am satisfied, partic-
ularly in the light of Young's testimony referred to above,
that the quality of the testimony relied upon by the Gener-
al Counsel is not such as to outweigh the denials of
Respondent's witnesses. For like reasons, I also find that
the General Counsel has failed to establish his further
claim that Respondent assisted and supported Local 4 by
permitting and authorizing a representative of that Union
to come on its premises during working hours to solicit its
employees for membership. The only specific testimony
adduced by the General Counsel to support that claim was
that given by Fred Cox, and his testimony, which was in-
consistent with his prehearing affidavit, has been found
unreliable. The General Counsel argues with respect to the
July 3 meeting that it is implausible that a meeting of that
length participated in by all employees during working
hours could have taken place without the knowledge and
permission of management . But even if an inference was
warranted on that assumption that Respondent authorized
the July 3 meeting, this alone would not suffice under well-
settled precedent to support a finding of unlawful assis-
tance and support. The Board, with court approval, has
consistently held that where, as here, no other labor organi-
zation is seeking to organize the employees at the time and
there is no other probative evidence of unlawful assistance,
an employer's mere permission to a union to address em-
ployees on company time for organizational purposes is
not a violation of Section 8(a)(2) and (1) of the Act."
Accordingly, I conclude that this record does not sustain
t'he allegations of the complaint that Respondent unlawful-
ly assisted and supported Local 4 in its organizational ac-
tivity. From this it follows that there is also no support for
the complaint's allegation that Local 4 did not represent an
uncoerced majority of Respondent's employees at the time
its contract with Respondent was entered into.
C. Consideration of the Evidence, Analysis, and Concluding
Findings on the Representative-Complement Issue
Before considering whether Respondent's complement
of employees was "representative" on the dates of recogni-
tion and contract execution, it is necessary first to de-
termine what that complement was. The disagreement on
that question between the General Counsel, on the one
hand, and Respondent and Local 4, on the other, was
pointed out in section III, A, above. Resolution of that
question is complicated by the fact that the original payroll
records of Respondent and of A.G.E. Development Corpo-
ration, which had been subpenaed by the General Counsel,
were not available at the hearing. Milton Kline explained
"See, e g, Longchamps, Inc, 205 NLRB 1025 (1973), Kimbrell v
N L R B, 290 F 2d 799, 803 (C.A 4, 1961), Wayside Press, Inc v N L R B,
206 F 2d 862 (C A 9, 1953)
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his testimony that these records had been stolen from
Respondent about 8 weeks before the hearing in an armed
robbery of Respondent's office that was reported to and
investigated by the police. Prior to that time, however, the
Board agent investigating the case had examined
Respondent's payroll records and had made a list of the
names of employees appearing on Respondent's payroll re-
cords for the period for which the original records were not
available. So far as appears, no similar list was made by
him of employees on the A.G.E. payroll. It was stipulated
at the hearing that the listing prepared by the Board agent
might be received in evidence as a schedule accurately re-
flecting the Golden Manor payroll records for the weeks
ending May 25, 1973, through August 3, 1973. That sched-
ule will be hereinafter referred to as General Counsel's Ex-
hibit 3. Respondent and Local 4 contend, however, that
General Counsel's Exhibit 3 does not fully cover all em-
ployees in the contract unit who were actually employees
of Respondent when Local 4 was recognized and the con-
tract was executed. They take the position that in comput-
ing Respondent's complement of unit employees at times
material herem, there should be added to those named in
the exhibit the names of others who were working at Gold-
en Manor's premises at the time even though their names
did not appear on the specific payroll records which the
Board agent examined in preparing the exhibit. Milton
Kline testified generally that all employees working on
Golden Manor's premises on and after July 3 were actually
performing preparatory services for Respondent that were
necessary for the operation of that facility.
The General Counsel conceded at the hearing that there
were employees in addition to those listed in General
Counsel's Exhibit 3 who were working for Kline on the
Golden Manor premises at the time in question. But he
contends that because of the nonproduction of the A.G.E.
records it should be presumed that all employees not spe-
cifically named in the exhibit were A.G.E., not
Respondent's employees, and therefore not to be counted
in determining whether Respondent employed a represen-
tative complement of employees.
With the issue thus defined, I turn to a consideration of
the specific evidence that bears on it.
General Counsel's Exhibit 3 contains the names of eight
nonsupervisory employees 12 for the payroll period ending
July 6, 1973, and the same names plus those of three addi-
tional employees 13 for the payroll period ending July 13,
1973, during which, as found above, Respondent recog-
nized Local 4 and entered into the collective-bargaining
agreement with it. The names of these employees also ap-
pear among the 20 employees listed on Respondent's pay-
roll for the week ending August 3, 1973, the first week of
operations following the actual opening for business of the
Golden Manor.14
12 Bob Levin, Morris Dickens, Freddie Cox, Rodney Hogan, Helen
Charles, Glenda Ghee, Frances Ghee [Cox], and Wilma Matthews
13 Thomas Burnell , Rubin Rivera, and Joel Kramer
14 There is an unexplained discrepancy between G.C Exh. 3 and a subse-
quent exhibit in evidence-G C Exh 7-which lists the number (but not
names) of employees for each payroll period from August 3, 1973, through
December 28, 1973, as stipulated by all parties at the hearing G C Exh 7
fixes the number for the payroll period ending August 3 as 18, whereas G C
Among those whom Respondent and Local 4 would add
to the list of 11 who the General Counsel concedes were
employed by Respondent are Albert Young, Anthony Lo-
pez, Robinson Ortiz, Modesto Velez, and William Arroyo.
These five were present at the July 3 meeting at which
cards were signed, and their cards were among the 12 that
Gordon exhibited to the Klines as proof of Local 4's ma-
jority. Their names also appear as employees of Respon-
dent on General Counsel's Exhibit 3 for the week ending
August 3 and subsequent weeks. In addition to Kline's gen-
eralized testimony that these employees during July were
performing services for the Golden Manor, the record con-
tains the following evidence bearing on the status of each
of these individuals as employees of Respondent during the
weeks ending July 6 and 13.
Albert Young: As noted above, Young is one of the
Charging Parties in this proceeding. He testified that in
June 1973, he was hired by Jacob Kline to help get the
Golden Manor ready for its opening; that thereafter, until
the week ending July 6, 1973, he worked as a handyman
doing painting and cleanup work in the kitchen and dining
room; that on July 6 he was placed on layoff status and
remained on layoff until August 1 when the Golden Manor
opened for business; that he returned to the Golden Manor
on August 1, and thereafter worked for Respondent as a
kitchen helper until his discharge on August 22. It was
Young's understanding when he was hired in June that he
was being employed by Respondent. Nevertheless, he was
paid with A.G.E. checks for his work through the week
ending June 29. For the week ending July 6, however, he
was paid by check of Respondent. According to Young, he
did not learn until he was laid off on July 6 that his regular
work when the Golden Manor opened for business was to
be that of a kitchen helper. But his testimony in that re-
spect is belied by the Local 4 designation card which he
signed, I find, on July 3. That card states in his own hand-
writing that his employer was "Klein's Golden Manor"
and that his class of work was "Chef Asst."
Anthony Lopez: As appears from his testimony, he was
hired in June 1973 by Kline to do cleaning work at the
Golden Manor. He worked until late July when he was laid
off and told he would be recalled. He thereafter worked as
a dishwasher and also performed cleaning duties. Lopez'
testimony reflects that in July he considered himself an
employee of Respondent. Though his name is not on Gen-
eral Counsel's Exhibit 3, paychecks in evidence, and also
testimony by Young, show he was compensated for his
services in July by Respondent.
Robinson Ortiz: He was hired in June 1973, apparently
as a part-time employee, to do cleaning work, and was
retained by Respondent after August 1 as a kitchen work-
er. Cancelled checks in evidence, dated July 3 and July 20,
reflect that during July he was paid for his work at the
Golden Manor, at least at times, by Respondent.
Modesto Velez: There is no specific testimony concern-
ing him, other than testimony by Young identifying him as
an employee who, like Young, on one or more occasions
during June or July, was paid by check drawn on the ac-
Exh 3 lists 20 names of nonsupervisory employees who worked during that
period
KLEIN'S GOLDEN MANOR
count of A.G.E. There is nothing in the record to indicate
that he was paid for his work prior to August by Respon-
dent.
William Arroyo: Arroyo, a witness for the General
Counsel, testified that he initially worked at the Golden
Manor as a construction worker , but later was hired by the
Klines , did painting and papering work for the Kltnes for a
time , and after the residents moved in became a night por-
ter. Arroyo testified that when he signed his Local 4 desig-
nation card, which is dated July 3, 1973, he was working
for "Klein 's Golden Manor." The card so states in
Arroyo's own handwriting . It also gives the date of his em-
ployment by Respondent as June 21, 1973. Arroyo's testi-
mony does not indicate whether he was paid by check of
Respondent or of A.G.E. prior to August 1, 1973.
Uncontradicted evidence also identifies two other em-
ployees as having been employed at the Golden Manor at
the time material herein , although their names first appear
on General Counsel 's Exhibit 3 for the week ending August
3. One is Georgia Harris, a witness for Respondent, who
testified without contradiction that she was hired to do
housekeeping work at the Golden Manor in June 1973 and
that she worked there during July. The other is Shirley
Boyd who signed a Local 4 designation card dated July 10,
1973, in evidence, and who was identified by Morris Dick-
ens as having worked at Golden Manor prior to the execu-
tion date of the contract." There is nothing in the record to
indicate that either of these employees was compensated
by Respondent prior to August 1.
It thus appears that on the dates of recognition and con-
tract execution there were 18 employees at the Golden
Manor engaged in preparatory work for its opening. 16 All
18 were retained as part of the Golden Manor's regular
operating work force when Respondent opened its doors
for business on August 1. They constituted in number 90
percent of Respondent's entire staff of employees during
the first week it was open for business , the same percentage
of Respondent's average number of employees (20) during
the next 3 months of its operations, and about 65 percent
of Respondent's average weekly complement (26) during
the balance of the year.
In the particular factual circumstances of this case, I am
unable to agree with the General Counsel that, for purpos-
es of determining whether there was a representative com-
plement of employees at the time material herein, consider-
ation must be limited to those employees whose names
were listed on Respondent's payroll at the time (G.C. Exh.
3). The record shows that, with the possible exception of
Arroyo, all employees then working on the Golden Manor
premises, whether on the A.G.E. payroll or that of Golden
15 Local 4 also introduced into evidence , without objection by the Gener-
al Counsel , Local 4 designation cards of Rosemary Williams and Victoria
Law, dated July 10, and of Delia Ketchum, dated July 11, which Gordon
testified were in his possession at the time the contract was signed I find the
testimony adduced by Local 4 with respect to these cards insufficient, how-
ever , to support a finding that these individuals were employed at the Gold-
en Manor at the time in question , or, for that matter , at any other time
16 Of these , the record shows , all but four (Robert Levin , Rubio Rivera,
Thomas Burnell , and Joel Kramer) had designated Local 4 as their bargain-
ing representative on or before the date of recognition , July 10 , and that
only two (Kramer and Burnell ) had not yet done so as of the contract
execution date
815
Manor, were first hired by the Klines after the construction
of the building was completed . As reflected by the testimo-
ny of Young, Lopez, Arroyo, and Harris, those whose
names do not appear on General Counsel 's Exhibit 3 re-
garded themselves , no less than the others , as employees of
Respondent . All were engaged in a common endeavor-
preparing the Golden Manor for its opening-and in that
respect were performing related functions . They shared in
their work relationship a community of interest which
made them appropriately part of a single bargaining unit,
even though as to some of them A.G.E. might be regarded
as a joint employer with Respondent. Further , the fact that
some of the employees-Young, Lopez, Ortiz-were paid
at times with checks of A.G.E. and at other times with
checks of Respondent-serves to confirm the testimony of
Milton Kline that the differences in the source of payment
were bottomed basically on bookkeeping considerations. It
is true that there is no specific evidence , except in the case
of Young , that as of the time material herein those not on
General Counsel's Exhibit 3 had been assured by Respon-
dent that they would be retained on Respondent's work
force after the Golden Manor opened for business. The
fact remains , nonetheless , that all of them were retained.
Though perhaps a matter of hindsight, I regard this as a
relevant fact that should not be ignored in considering
whether Respondent's contract with Local 4 should now be
invalidated for the reason urged by the General Counsel.
Also not to be ignored is the number of employees who
designated Local 4 prior to the contract execution date.
That number is not only sufficient to constitute a majority
of those then employed , it is also sufficient to constitute a
majority of Respondent 's maximum employee complement
reached thereafter.
Adopting the view expressed above, I believe there can
be little doubt that no equitable basis exists in this case for
invalidating Respondent's contract with Local 4 because of
the alleged premature recognition.
On the facts of this case, however, I would reach the
same result even if I agreed with the General Counsel that
employees whose names do not appear on General
Counsel's Exhibit 3 must be presumed to have been em-
ployees of A.G.E. only, and that they should therefore be
disregarded in computing Respondent's complement of
employees as of the time of recognition and the contract.
The I I employees listed on that exhibit for the week ending
July 13 constituted more than 50 percent of Respondent's
complement of employees during August and September
and approximately 42 percent of that complement during
the balance of the year. And if the names of Young, Lopez,
and Velez are added to that list, as I think they should be,
on the theory that as to them the presumption urged by the
General Counsel has been successfully rebutted, the fore-
going percentage figures would be enlarged to 70 percent
and 54 percent, respectively. The record further reflects, at
least with respect to most of the employees listed on Gener-
al Counsel's Exhibit 3, that it was understood when they
were initially hired that they would occupy the specific job
classifications they eventually filled; that although not all
of them performed during the preparatory period the pre-
cise duties of the specific job classifications for which they
were hired , the work they did in cleaning rooms, setting up
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furniture, etc. was in some measure related to the jobs they
were to fill; and that the job classifications for which these
employees were hired, and which they eventually filled,
covered substantially all of the job classifications at the
Golden Manor when it was in full operation.
Although the Board has adopted no per se rule in prema-
ture recognition cases such as this for deternuning whether
a representative complement of employees was employed
at the time recognition was granted, the Board does consid-
er, among all other circumstances, whether the required
percentages which are set forth in General Extrusion Co.,
Inc., 121 NLRB 1165, 1168 (1958), and which the Board
applies as rule of law in contract-bar representation cases,
have been met.17 And where it is found in complaint cases
such as this that the General Extrusion percentage stan-
dards have been satisfied, the Board appears to give that
consideration determinative weight.18 In this case it is clear
that the General Extrusion required condition relating to
minimum size of the ultimate employee complement (50
percent) has been more than amply met.19 And in the cir-
cumstances of this case, I am also persuaded, and find, for
reasons indicated above, that the required conditions relat-
ing to minimum of classifications (50 percent) have also
been satisfied. Had Local 1115 filed a representation peti-
tion instead of an unfair labor practice charge at the time it
did, I am reasonably certain that on the facts of this case,
the Board, applying its General Extrusion standards, would
have found Respondent's contract with Local 4 a bar to
n See Prince Pontiac, Inc , 174 NLRB 919 (1969), American Beef Packers,
Inc, 180 NLRB 634 (1970) And see also Kaynard v Cowles Communica-
tions, Inc, 66 LRRM 2053, 2063, In 12 (D C N Y, 1967)
18 See Board cases cited ibid The same , however , is not true in converse
situations , i e., where such percentage standards are not shown to have been
met Other variable factors must then be considered in determining whether
the totality of circumstances adds up to an unfair labor practice
i9 This would be so even if the recognition date was found to be July 6,
1973, as urged by the General Counsel (although no recognition agreement
was executed nor any unequivocal statement of recognition was made at
that time) rather than July 10, as found above
the petition, rejecting Local 1115's claim that there was no
representative complement of employees when the contract
was made. Absent other proof of 8(a)(2) conduct-and
none has been found in this case-it would seem patently
incongruous to hold that a contract good enough in a rep-
resentation proceeding to bar a petition may nevertheless
be invalidated in a complaint proceeding, though the only
issue in both proceedings-representative complement of
employees-is precisely the same.
Under all the circumstances in this case, I find that the
General Counsel has not sustained the allegation of the
complaint that Respondent violated Section 8(a)(1) and (2)
by recognizing and entering into a contract with Local 4 at
a time when it did not have a representative complement of
employees. Having previously found the other allegations
of the complaint bearing on the validity of the existing
contract between Respondent and Local 4 similarly unsup-
ported, it follows that the complaint's Section 8(a)(3) alle-
gations based upon Respondent's maintenance and en-
forcement of the union-secunty provisions of that contract
must also fall. As this disposes of all of the complaint's
allegations that remain after the order of severance, I shall
recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent has not, as alleged in paragraphs 7
through 13 and in the related allegations of paragraphs 22
through 24 of the complaint, engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2), and (3) of
the Act.
RECOMMENDED ORDER
It is recommended that the complaint herein be dis-
missed in its entirety.