Northern Montana Health Care

National Labor Relations Board - Board Decisions

Oct 17, 1997

324 N.L.R.B. 752 (N.L.R.B. 1997)

752
324 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996). In addition, the judge recommended that the Board issue a
broad order requiring the Respondent to cease and desist from vio-
lating the Act ‘‘in any other manner.’’ We, however, do not find the
Respondent’s conduct in this case egregious enough to warrant the
issuance of such an order. Accordingly, we are issuing a narrow
cease-and-desist order requiring the Respondent to cease and desist
from violating the Act ‘‘in any like or related manner.’’ See
Hickmott Foods, 242 NLRB 1357 (1979). Finally, the judge incor-
rectly used the formula in F. W. Woolworth Co., 90 NLRB 289
(1950), for computation of amounts necessary to make employees
whole for any losses they suffered as a result of the Respondent’s
unilateral changes in employee terms and conditions of employment.
The proper formula for such computation in the current situation ap-
pears in Ogle Protection Service, 182 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971).
3 In addition to the reasons articulated by the judge for finding that
the single-employer status of all three of the above-named entities
was adequately pled, we also find that the issue was fully litigated.
See Britt Metal Processing, 322 NLRB 421 (1996).
4 The judge found that the Respondent’s bargaining obligation
began to run on September 16, 1994, ‘‘a time when there was no
dispute that Respondent was fully apprised of the Union’s
successorship theory.’’ The General Counsel and the Charging Party
Union have excepted to this finding, and we find merit in their ex-
ceptions. As the judge acknowledged, a union’s request that a suc-
cessor employer bargain with it need not set forth the union’s theory
of the successor’s obligation to bargain. Al Landers Dump Truck,
192 NLRB 207, 208 (1971), enfd. sub nom. NLRB v. Cofer, 637
F.2d 1309 (9th Cir. 1981). Contrary to the judge, we find that the
Respondent’s bargaining obligation attached on September 6, 1994,
when the Respondent received the Union’s letter demanding bargain-
ing.
5 On September 14, 1994, the Respondent filed an RM petition
which sought a bargaining unit that was much smaller than the pred-
ecessor employer’s established unit. The judge erroneously stated
that the Regional Director for Region 27 had dismissed that RM pe-
tition. In fact, that petition has not been dismissed, but rather has
been administratively ‘‘blocked’’ by the issuance of the instant un-
fair labor practice complaint. The judge’s misstatement does not af-
fect the result herein.
6 Chevron U.S.A., Inc., 309 NLRB 59, 62 (1992), enfd. mem. 28
F.3d 107 (9th Cir. 1994); George C. Foss Co. v. NLRB, 752 F.2d
1407, 1410 (9th Cir. 1985); and Tucson Gas & Electric Co., 241
NLRB 181, 181 (1979).
Northern Montana Health Care Center, a subsidi-
ary of Northern Montana Health Care, Inc.
and United Food and Commercial Workers
Union, Local No. 8. Case 27–CA–13394
October 17, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On September 20, 1995, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
Respondent, the General Counsel, and the Charging
Party filed exceptions and supporting briefs, and the
Respondent filed an answering brief.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions as modified below and
to adopt the recommended Order as modified and set
forth in full below.2
1. We adopt the judge’s findings that the Respond-
ent, Northern Montana Health Care Center (Care Cen-
ter), is the legal successor to the predecessor employer,
Lutheran Home of the Good Shepherd (the Home),
some of whose employees were represented by the
Charging Party Union until the Home’s sale to the
Care Center on August 31, 1994; that the Care Center,
Northern Montana Hospital (the Hospital), and their
parent corporation, Respondent Northern Montana
Health Care, Inc. (the Corporation) constitute a single
employer (the Respondent);3 that in early September
1994, the Care Center employed a representative com-
plement of employees, a substantial majority of whom
were formerly employed in the predecessor’s unit; and
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize and bar-
gain with the Union.4 We also agree with the judge’s
finding that the dietary aides, maintenance workers,
laundry workers, and housekeepers who regularly work
at the Care Center are properly included in the appro-
priate bargaining unit.5
2. We do not agree, however, with the judge’s find-
ing that the licensed practical nurses (LPNs) formerly
included in the predecessor employer’s certified unit
and currently employed at the Care Center are super-
visors within the meaning of Section 2(11) of the Act.
Accordingly, we reverse the judge’s finding that the
LPNs are not to be included in the appropriate bargain-
ing unit.
It is well established that the burden of proving su-
pervisory status is upon the party asserting it.6 Thus,
the burden was on the Respondent to establish the su-
pervisory status of the LPNs. We find that the Re-
spondent failed to meet that burden.
Section 2(11) of the National Labor Relations Act
defines a supervisor as:
. . . any individual having authority, in the inter-
est of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to di-
rect them, or to adjust their grievances, or effec-
tively to recommend such action, if in connection
with the foregoing the exercise of such authority
is not of a merely routine or clerical nature, but
requires the use of independent judgment.
The Care Center employs five LPNs, four of whom
previously held the same position at the Home. The
LPNs regularly serve as medication nurses and charge
nurses in both of the Care Center’s wings. The judge
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753NORTHERN MONTANA HEALTH CARE
7 This finding is undercut by the testimony of Respondent’s wit-
ness, director of nursing, Leann O’Reilly, who testified that since the
Care Center opened there has never been a LPN present without a
registered nurse (RN) also on duty. She further testified that when
an LPN is serving as a charge nurse, there is always an RN at the
facility in another unit plus three management RNs in the building
upon which the LPN can always call. Finally, O’Reilly testified that
if an LPN was charge nurse in one wing, an RN would always be
in charge in the other wing and the LPN takes direction from the
RN. (Emphasis added.)
8 The judge added that in NLRB v. Health Care & Retirement
Corp., 511 U.S. 571 (1994), the Supreme Court found similar charge
nurse direction to aides to be evidence of supervisory status. We dis-
agree. As the General Counsel points out in his brief, the Court’s
decision was a very narrow one limited to rejecting the Board’s ‘‘pa-
tient care’’ analysis for determining the supervisory status of nurses.
The Court specifically stated that the case before it did not present
the question whether ‘‘these nurses were supervisors under the prop-
er test.’’ Id. at 584.
9 The only evidence regarding LPNs’ assignment of overtime to
nurses aides shows that if a shift is understaffed, an LPN charge
nurse can assign overtime or call in an employee to assure an ade-
quate employee complement. The Respondent, however, failed to
demonstrate that the LPNs exercise independent judgment in deter-
mining whether additional staff is needed in particular situations.
Further, the evidence shows that there is a list of nurses aides who
have volunteered to receive overtime assignments. The charge nurse
goes down that list to call on nurses aides. A nurses aide, upon
being called, can decline the assignment.
10 While the Care Center’s LPN job description lists participation
in hiring and firing decisions as part of the LPNs’ responsibilities,
no evidence was introduced to establish that LPNs were ever author-
ized to engage in such functions. Moreover, the job description dis-
cussed herein was not approved by the Care Center until January
1995, some 5 months after the Care Center hired these LPNs and
became the successor to the Home. See Chevron U.S.A., Inc., 309
NLRB 59, 62 (1992), enfd. mem. 28 F.3d 107 (9th Cir. 1994).
11 The Respondent asserts that the LPN charge nurses herein
evaluate the nurses aides. The evidence presented by the Respond-
ent, however, establishes only that the LPN charge nurses have,
through use of a form, evaluated nurses aides on how well they
wash their hands. This limited ‘‘evaluation’’ function, however, does
not require the exercise of independent judgment on the part of the
LPN charge nurses, but rather, involves only the exercise of routine
or clerical functions. Moreover, at the time of the hearing, April
1995, no annual evaluations had been given and Respondent, at best,
testified only that it ‘‘anticipated’’ LPN charge nurse ‘‘participa-
tion’’ in annual evaluations sometime in the future, but did not indi-
cate the anticipated extent of that participation.
12 The Respondent asserts that LPN charge nurses can recommend
nurses aides for awards. The evidence, however, establishes that any
employee can recommend any other employee for an award, and the
Respondent introduced no evidence to establish that charge nurse
recommendations were given any more weight than any other em-
ployee’s recommendation in determining whether nurses aides re-
ceived awards.
found that when working in their charge nurse capac-
ity, the LPNs are responsible for residents and staff in
the wing to which they have been assigned.7
The judge, without noting his reliance on any spe-
cific evidence, found that ‘‘[LPNs] when acting as
charge nurses give direction to [nurses aides] which is
not of a routine or clerical nature and involves the use
of independent judgment.’’ ‘‘On that basis alone,’’ the
judge stated, he found the LPNs to be supervisors
within the meaning of Section 2(11) of the Act.8 Al-
though the Respondent asserted and the judge listed
other supervisory authority which the Respondent’s
LPNs allegedly possess, such as assigning work to
nurses aides, issuing oral or written discipline, and as-
signing overtime,9 the judge relied solely on respon-
sible direction to support his supervisory finding.
The Board’s analysis of responsible direction fol-
lowing the Supreme Court’s Health Care & Retirement
decision is fully set forth in Providence Hospital, 320
NLRB 717, 727–730 (1996), which issued after the
judge’s decision in the instant case. This analysis was
endorsed by the United States Court of Appeals for the
Ninth Circuit, 121 F.3d 548 (9th Cir. 1997), enfg.
Providence Alaska Medical Center, 321 NLRB No.
100 (July 10, 1996) (not reported in Board volumes).
As explained in Providence Hospital, supra, the Board
applies to charge nurses the same test it applies to all
other employees. In determining whether the charge
nurses’ directions render them statutory supervisors,
the Board decides whether the directions given require
independent judgment or whether such directions are
merely routine.
Here, the evidence does not establish that the LPNs
use their independent judgment to responsibly direct
the work of aides in a manner that is neither routine
nor clerical. Thus, when serving as charge nurses, the
evidence establishes that the only ‘‘direction’’ in
which LPNs engage is directing nurses aides in certain
routine aspects of patient care, such as taking resi-
dents’ vital signs, taking residents for short walks, as-
sisting residents to the dining room, and helping them
eat. These tasks, however, are routine ones that are
done day-after-day, and there is no evidence that in di-
recting the nurses aides to do them (and to do them
correctly), the LPN charge nurses are exercising any
independent judgment. In fact, according to the
uncontradicted testimony of LPN Sandra Newberry, if
an LPN sees a nurses aide performing a task incor-
rectly, the LPN will simply demonstrate to the aide the
correct way to perform the task. This is nothing more
than the exercise of the LPN’s greater skill and experi-
ence in helping a less skilled employee perform her
job correctly. As the Board stated in Providence Hos-
pital, supra, 320 NLRB at 729, ‘‘Section 2(11) super-
visory authority does not include the authority of an
employee to direct another to perform discrete tasks
stemming from the directing employee’s experience,
skills, training, or position . . . .’’
There is no probative evidence that the Respond-
ent’s LPNs are authorized to hire,10 suspend, lay off,
recall, promote,11 or reward nurses aides12 or any other
employees, or to effectively recommend such actions.
The Respondent, however, contends that the LPN
charge nurses do have authority to transfer and dis-
charge nurses aides, or to effectively recommend such
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754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
actions, as well as the authority to adjust their griev-
ances. We find, however, that the evidence does not
support these contentions.
First, the Respondent presented scant evidence that
LPN charge nurses had the authority to transfer or dis-
charge nurses aides, or to effectively recommend such
actions. The only evidence the Respondent presented
concerning an LPN charge nurse’s authority to transfer
an aide was the testimony of Director of Nursing
O’Reilly that if one of the wings was short staffed, an
LPN charge nurse could transfer an employee to the
wing. The Respondent presented no examples of such
transfers, nor did it provide any evidence to indicate
that such transfers involved anything more than a rou-
tine judgment as to the number of aides needed to
serve a particular number of patients.
Next, the Respondent presented the testimony of
LPN Sandra Bennett and Assistant Director of Nursing
Alice Chambers to establish that LPN charge nurses
had the authority to effectively recommend the dis-
charge of nurses aides. Bennett summarily testified that
she has authority to recommend the termination of an
employee, but neither she nor any other witness pro-
vided examples of any instance where any such rec-
ommendation had been made which had resulted in the
discharge of an employee. Chambers testified that she
relied upon LPN evaluations in deciding whether to
terminate probationary nurses aides. However, at the
time of her testimony, no LPN had written an annual
evaluation of an employee and Chambers merely ‘‘an-
ticipated’’ that when annual evaluations were per-
formed, LPN charge nurses would ‘‘participate’’ in
such reviews. Her testimony, however, included no ex-
amples of any discharge based on an LPN’s evalua-
tion. Accordingly, we find that this scant evidence is
insufficient to establish that LPN charge nurses exer-
cise supervisory authority in the transfer or discharge
of any employee.
The Respondent’s assertion that LPN charge nurses
have the authority to adjust grievances is belied by the
testimony of its own witness, Director of Nursing
O’Reilly. Thus, while O’Reilly testified that LPN
charge nurses were authorized to handle grievances
and disputes between employees, she further testified
that LPN charge nurses are instructed to come to her
with conflicts, discuss the problem with her and go
back to the unit and try to resolve them. ‘‘If that
doesn’t work,’’ O’Reilly testified, ‘‘[S]he can come
back to me and we will take it from there.’’ Moreover,
LPN Newberry testified that when a nurses aide comes
to her with a problem, she speaks to O’Reilly and if
O’Reilly feels Newberry can handle the problem,
O’Reilly will tell Newberry to deal with it and then to
report back to O’Reilly and tell her the outcome. We
find that the evidence does not establish that LPN
charge nurses have the authority to independently ad-
just employee grievances.
As mentioned above, the judge referred generally to
the Respondent’s contention that the LPNs have super-
visory authority to assign work to nurses aides. While
it is true that LPN charge nurses write the names of
nurses aides on assignment sheets, the record shows
that aides can switch assignments among themselves
without first checking with an LPN as long as all as-
signments remain covered. Thus, the act of the LPN in
writing a particular aide’s name on the assignment
sheet is of no particular consequence in determining
which aide actually ends up doing the work.
The judge also noted the Respondent’s assertion that
the LPNs have the authority to issue oral or written
discipline. The only evidence of such alleged authority
is a document introduced by the Respondent which
shows that LPN Barbara Grabert wrote a record of an
oral warning to nurses aide Michelle Anderson. How-
ever, the recordation of the oral warning was written
on the predecessor employer Home’s letterhead, not
the Care Center’s, and there is no evidence that the
warning affected Anderson’s job status or resulted in
any adverse personnal action. See Northcrest Nursing
Home, 313 NLRB 491, 497 (1993).
Having found that LPN charge nurses do not exer-
cise independent judgment with regard to any of the
indicia of supervisory authority set forth in Section
2(11) of the Act, we find that they are not supervisors.
Accordingly, we reverse the judge’s finding that the
LPN charge nurses are supervisors and conclude that
they are to be included as part of the appropriate unit
concerning whom the Respondent must bargain with
the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Northern Montana Health Care, Inc., and
its subsidiaries Northern Montana Hospital and North-
ern Montana Health Care Center, Havre, Montana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
with the Union respecting the unit set forth below.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding
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755NORTHERN MONTANA HEALTH CARE
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
is reached, embody the understanding in a signed
agreement:
Employees of Northern Montana Health Care,
Inc., Northern Montana Hospital, and Northern
Montana Health Care Center regularly employed
at the Northern Montana Health Care Center in
the following job classifications: licensed practical
nurses, nurses aides, dietary aides, rehabilitation
aides, maintenance employees, laundry employees,
housekeepers, activity aides and ward clerks, ex-
cluding all professional employees, registered
nurses, administrators, activity supervisors, con-
fidential employees, guards and supervisors as de-
fined in the Act and all employees irregularly em-
ployed at the Care Center.
(b) On request of the Union, restore the status quo
ante of unit employees, rescinding any changes made
in the unit employees’ wages, hours, and working con-
ditions that were implemented on or after September 6,
1994, and make all affected unit employees whole for
any and all losses they incurred by virtue of the
changes to their wages, fringe benefits, and other terms
and conditions of employment from September 6,
1994, until it negotiates in good faith with the Union
to agreement or to impasse, the amount owing to be
computed as described in Ogle Protection Service, 182
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
plus interest as calculated in accordance with New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze and deter-
mine the amount of money owed to these unit employ-
ees.
(d) Within 14 days after service by the Region, post
at the following of its facilities in Havre, Montana,
copies of the attached notice marked ‘‘Appendix’’:13
Northern Montana Health Center, Inc., Northern Mon-
tana Hospital, and Northern Montana Health Care Cen-
ter. Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employ-
ees employed by the Respondent at any time since
September 6, 1994.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
United Food and Commercial Workers Union, Local
No. 8 as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit:
Employees of Northern Montana Health Care,
Inc., Northern Montana Hospital, and Northern
Montana Health Care Center regularly employed
at the Northern Montana Health Care Center in
the following job classifications: licensed practical
nurses, nurses aides, dietary aides, rehabilitation
aides, maintenance employees, laundry employees,
housekeepers, activity aides, and ward clerks, ex-
cluding all professional employees, registered
nurses, administrators, activity supervisors, con-
fidential employees, guards and supervisors as de-
fined in the Act, and all employees irregularly
employed at the Care Center.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of our employees in the appropriate unit set forth
above concerning wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL, on request of the Union, restore the status
quo ante of unit employees, rescinding any changes
made in the unit employees’ wages, hours, and work-
ing conditions that were implemented on or after Sep-
tember 6, 1994, and make all affected unit employees
whole for any losses they incurred by virtue of the
changes in their wages, benefits, and other terms and
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756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Where not otherwise noted, the findings herein are based on the
admitted portions of the amended complaint, the stipulations or ad-
missions of counsel, and uncontested, credible testimonial or docu-
mentary evidence.
conditions of employment from September 6, 1994,
until we negotiate in good faith with the Union to
agreement or to impasse, with interest.
NORTHERN MONTANA HEALTH CARE,
INC., AND ITS SUBSIDIARIES NORTHERN
MONTANA HOSPITAL AND NORTHERN
MONTANA HEALTH CARE CENTER
A. E. Rubble, Esq., for the General Counsel.
Donald C. Robinson, Esq. (Poore, Roth & Robinson), of
Butte, Montana, for the Respondent.
D. Patrick McKittrick, Esq., of Great Falls, Montana, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this matter in trial in Havre, Montana, on April 26, 27,
and 28, 1995, pursuant to a complaint and notice of hearing
issued by the Regional Director for Region 27 (the Regional
Director) of the National Labor Relations Board (the Board)
based on a charge filed by United Food and Commercial
Workers Union, Local No. 8 (the Union) against Northern
Montana Health Center (the Center) on September 16, 1994,
and docketed as Case 27–CA–13394. The Regional Director
issued an amended complaint and notice of hearing on Janu-
ary 13, 1995, against the Center and a second amended com-
plaint and notice of hearing on March 31, 1995, against the
Center and Northern Montana Health Care, Inc. (sometimes
the Parent Corporation) as a single employer with the Center
(sometimes collectively, the Parent Corporation as Respond-
ent). Respondent filed timely answers to the complaints.
The complaint alleges that Respondent purchased the busi-
ness of the Lutheran Home of the Good Shepherd in August
1994 and thereafter operated the business in basically un-
changed form employing as a majority of its employees the
employees of the Lutheran Home of the Good Shepherd. The
complaint further alleges that the Lutheran Home of the
Good Shepherd had long recognized the Union as the exclu-
sive representative of its employees in an appropriate unit
and that, based on these facts, Respondent is a successor to
the Lutheran Home of the Good Shepherd as of August 31,
1994, and became obligated to recognize and bargain with
the Union as the exclusive representative of its unit employ-
ees upon its demand for recognition on or about September
2, 1994. The complaint further alleges that Respondent has
at all times since that date failed and refused to recognize
and bargain with the Union respecting unit employees and
has thereby violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act).
The Center denies that it is a successor to the Lutheran
Home of the Good Shepherd and further denies that the bar-
gaining unit at issue is appropriate for collective bargaining.
Further, Respondent alleges that at all relevant times it had
a good-faith doubt that the Union represented a majority of
its employees. Respondent, therefore, denies that it was ever
obligated to recognize and bargain with the Union and denies
that its refusal to do so violated the Act in any way.
On the entire record herein, including my observation of
the witnesses and their demeanor, and helpful briefs from the
General Counsel, the Charging Party, and Respondent, I
make the following
FINDINGS OF FACT1
I. JURISDICTION
The Center is a nonprofit corporation, with a health care
facility located in Havre, Montana, where since August 31,
1994, it has been providing long-term patient health care
services. Based on a projection of earnings from the time of
its commencement of operations to the issuance of the com-
plaint, the Center annually enjoys gross revenues in excess
of $250,000 and purchases and receives goods and materials
valued in excess of $5000 directly from points outside the
State of Montana.
The Parent Corporation is a nonprofit corporation with a
facility located in Havre, Montana, where it is engaged in
providing acute health care and extended health care patient
services. The Parent Corporation annually enjoys gross reve-
nues in excess of $250,000 and purchases and receives goods
and materials valued in excess of $5000 directly from points
outside the State of Montana.
The Center and the Parent Corporation, and each of them,
are and have been at all times material employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The Lutheran Home of the Good Shepherd
The Lutheran Home of the Good Shepherd (Good Shep-
herd) operated a long-term nursing care facility on Fifth Ave-
nue in Havre, Montana (the facility), for many years until the
events in issue herein. The facility is a single-story structure
with associated grounds and parking lot. The structure con-
sists of an east and west wing with north and south halls
centering on administrative offices, dining and kitchen facili-
ties, and a chapel. The facility under Good Shepherd main-
tained approximately 100 long-term care beds.
On February 20, 1981, in Case 19–RC–100632 following
an election held in a stipulated unit, the Board issued a Cer-
tification of Representative to the Union asserting, inter alia,
that:
[P]ursuant to Section 9(a) of the National Labor Rela-
tions Act, as amended, the [Union] is the exclusive rep-
resentative of all the employees in the unit set forth
below, found to be appropriate for the purposes of col-
lective bargaining in respect to rates of pay, wages,
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757NORTHERN MONTANA HEALTH CARE
3 LPNOS refers to licensed practical nurses. Nurses aids refers to
nursing assistants or certified nursing assistants (CNAs). In practice,
rehabilitation therapy employees were treated as CNAs. The unit in-
cluded ward clerks as well as activity, housekeeping, utility laundry,
dietary, and maintenance employees. 4 All dates hereinafter refer to 1994 unless otherwise indicated.
hours of employment, or other conditions of employ-
ment;
UNIT:
ALL EMPLOYEES OF THE [LUTHERAN HOME OF THE
GOOD SHEPHERD] AT ITS HAVRE, MONTANA FACILITY
INCLUDING ALL LPNOS, NURSES AIDES, DIETARY
AIDES, PHYSICAL THERAPY AIDES, MAINTENANCE EM-
PLOYEES, LAUNDRY EMPLOYEES, HOUSEKEEPERS AND
OFFICE CLERICAL EMPLOYEES, EXCLUDING ALL PRO-
FESSIONAL EMPLOYEES, REGISTERED NURSES, ADMIN-
ISTRATORS, ACTIVITY SUPERVISOR, CONFIDENTIAL
EMPLOYEES, GUARDS AND SUPERVISORS AS DEFINED
IN THE [NATIONAL LABOR RELATIONS] ACT. [Capital-
ization in the original.]3
Over the years, the Union and Good Shepherd entered into
a series of collective-bargaining agreements covering em-
ployees in the unit, the last of which was effective by its
terms from April 1, 1994, to August 31, 1995.
2. The Northern Montana Health Corporate family
Northern Montana Health, Inc. is a Parent Corporation of
several subsidiary corporations: Northern Montana Hospital,
Northern Montana Health Care Foundation, Inc., Northern
Montana Chemical Dependency, Inc., and Northern Montana
Health Care Center. Northern Montana Hospital (the Hos-
pital) operates an acute care hospital which includes a 33 bed
long-term care floor located in Havre. Northern Montana
Chemical Dependency operates a chemical dependency facil-
ity located adjacent to and connected with the Hospital.
Northern Montana Health Care Foundation is a philanthropic
organization which supports health care through fund raising
and awareness through the community of activities of the or-
ganizations and operates from within the Hospital. Northern
Montana Health Care Center was incorporated in August
1994 as a corporate vehicle to own and operate the Lutheran
Home of the Good Shepherd following the agreement by
Northern Montana Health Care to purchase its assets. The
Lutheran Home of the Good Shepherd facility operated by
the Center is within the community of Havre about a mile
from the Hospital.
All members of the Northern Montana Health family are
eleemosynary corporations and share a variety of common
goals and aspects. The president and chief executive officer
of Northern Montana, Inc., David Henry, holds the same po-
sitions respecting corporate subsidiaries including the Center
and the Hospital. Much of the administration, human re-
sources, recordkeeping, and support services of the various
entities are done at least to some extent by Hospital staff
under contract with the other entities. Further, as a result of
common planning, the corporate family contemplates a cen-
tralizing modernization in the coming years which will bring
the entities into a more integrated operation on a common
site.
B. Events
1. The acquisition and transformation of Lutheran
Home of the Good Shepherd into the Center
During the few years preceding the acquisition, the Hos-
pital and Lutheran Home of the Good Shepherd were com-
petitors in that each maintained long-term care beds. Over
time Lutheran Home of the Good Shepherd came to realize
that its physical plant and operations generally required cap-
ital infusions which were beyond its means. Its governing
board entered into negotiations which ultimately culminated
in the sale of its property and assets to Northern Montana
Health Care, Inc.’s newly created subdivision, the Center.
The record is clear that while the acquiring entities commit-
ted themselves to continue to operate the facility without
interruption as a long-term care facility, absolutely no com-
mitment was made by the Center in its dealings with Good
Shepherd to hire its staff nor to recognize or bargain with
the Union.
In summer of 1994, the Union was informed by Good
Shepherd that it would be discontinuing operation of the fa-
cility. In negotiations into August,4 the Union and Good
Shepherd negotiated and reached agreement on matters relat-
ed to the closure. While the facility did not discontinue its
operations nor discharge its patients, at the midnight transi-
tion of August 30 to 31, the facility no longer was operated
by nor were the continuing employees employed by Good
Shepherd.
During the initial months following the assumption of op-
erations, disregarding eventual changes of logo and generally
improved maintenance and related matters resulting from the
greater resources of the Center and its desires to generally
upgrade service, the operation of the facility from the pa-
tient’s perspective was similar to that undertaken by Lu-
theran Home of the Good Shepherd in former times. The
greater portion of the supervisory staff was retained, the fa-
cility was never closed nor patients removed at any time.
At the time of the transition, Lutheran Home of the Good
Shepherd employed approximately 157 employees of whom
approximately 74 were unit employees. Respondent under-
took hiring in mid-August so that it could continue oper-
ations at the facility without interruption. Respondent com-
menced and, thereafter, continued its operation of the facility
utilizing the services of a similar number of individuals of
whom some approximately 76 were engaged in duties pre-
viously undertaken by Lutheran Home of the Good Shepherd
unit employees. Of the approximately 76 so employed by the
Center in the same job classifications as the Good Shepherd
bargaining unit, some 54 had previously been employed by
Lutheran Home of the Good Shepherd in its bargaining unit.
2. Dealings between the Union, the Center, and
the Board
The Union was involved in attempting to place its Lu-
theran Home of the Good Shepherd unit employees in new
employment and in shoring up employee support should
those employees remain at the facility under Respondent. It
monitored the hiring undertaken by Respondent during Au-
gust and the beginning of September. During this period in-
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758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970); NLRB v. Burns
Security Services, 406 U.S. 272 (1972). Howard Johnson Co. v. De-
troit Joint Bd. Hotel & Restaurant Employees, 417 U.S. 249 (1974);
NLRB v. Fall River Dyeing Corp., 482 U.S. 27 (1987), affg. 775
F.2d 425 (1st Cir. 1985).
6 Significant factors in many successorship cases are not in con-
troversy herein and are therefor not discussed. For example, the
General Counsel is not contending that Respondent was obligated
from the start of its operation to recognize and bargain with the
Union and there is no issue as to when the new entity employed a
representative compliment of employees.
cluding the period immediately after the Center commenced
operations, the Union solicited the signing of authorization
cards.
The Union sent Respondent a letter dated September 2,
1994, stating in part:
This is to advise you that the majority of your employ-
ees in an appropriate bargaining unit at your Northern
Montana Care Center facility in Havre, Montana, have
designated the United Food and Commercial Workers
Union, Local No. 8 as their exclusive representative for
all such employees . . . to become effective August 31,
1994.
The letter recited as the appropriate bargaining unit that
which was in place under Lutheran Home of the Good Shep-
herd as quoted in full, supra.
By letter dated September 12, 1994, counsel for Respond-
ent replied stating, in part:
The employer has a good faith doubt that your labor
organization does in fact represent a majority of its em-
ployees in an appropriate bargaining unit and, therefore,
disputes your claim of exclusive representation of the
employees described in your letter. The employer fur-
ther disputes the validity of your contention that the de-
scribed unit is an appropriate unit under the National
Labor Relations Act.
Accordingly, on behalf of the employer we have
filed a petition with the National Labor Relations Board
initiating a representation proceeding before it, to re-
solve the issues which are presented by your letter.
On September 14, 1994, Region 27 docketed as Case 27–
RM–627 a representation petition filed by the Center respect-
ing a lesser included group of employees as compared to the
Union’s asserted unit, i.e., a unit of the Center’s resident care
aides, rehabilitation aides, activity aides, and ward clerk em-
ployees. The petition indicated the employees in the pro-
posed unit numbered 42.
On September 16, 1994, the Union filed the original
charge herein. That charge stated in the portion of the charge
form: ‘‘Basis of the Charge’’ that the Center was refusing to
recognize and bargain with the Union, asserting further:
This Local Union represented employees at the Lu-
theran Home, a majority of whom were hired by North-
ern Montana Care Center. And, who comprise a major-
ity of the potential bargaining unit at the Northern
Montana Care Center.
The Regional Director investigated the unfair labor practice
charge and the RM petition ultimately dismissing the petition
and issuing the complaint herein.
C. Analysis and Conclusions
1. The basic law of successorship
In order to better understand the various arguments of the
parties, it is appropriate to consider initially the basic law of
successorship including the factors which comprise the Gen-
eral Counsel’s prima facie case as well as the defenses pre-
sented.
The doctrine of successorship is an area significantly
mapped out by the Supreme Court. In a series of cases5 the
Court established that a union that had represented a unit of
employees of a predecessor employer would enjoy a pre-
sumption of continuing majority amongst a successor em-
ployer’s employees in certain circumstances. Relevant to the
instant case,6 as further fleshed out by the Board in response
to the teaching of the Court, the requirements of
successorship include: (1) that there be a continuity of work
force, i.e., that the successor bargaining unit contain a major-
ity of employees from the predecessor unit represented by
the union; (2) that there be substantial continuity of identity
in the employing industry, i.e., whether there have been sub-
stantial and material changes in the employing industry and;
(3) that there be continuity of the appropriate bargaining unit.
If the General Counsel has established these factors, the
union enjoys a presumption of majority status which, upon
a demand for recognition, obligates an employer to recognize
and bargain with the union respecting the unit employees ab-
sent a showing by the employer either that majority support
is, in fact, lacking or that it had a good-faith doubt based on
objective evidence of the union’s majority support in the
unit.
The parties do not dispute the basic law described above,
but litigated each of the noted elements as they applied to
the instant case and marshaled able factual analysis and legal
authority in helpful briefs. The elements in dispute are ini-
tially discussed separately below.
2. Continuity of identity in the employing industry
The Court in Fall River Dyeing Corp., supra, 482 U.S. 43,
restated the standard to be applied in this area:
In Burns we approved the approach taken by the
Board and accepted by courts with respect to determin-
ing whether a new company was indeed the successor
to the old, 406 U.S. at 280–281, and n. 4. This ap-
proach, which is primarily factual in nature and is
based upon the totality of the circumstances of a given
situation, requires that the Board focus on whether the
new company has acquired substantial assets of its
predecessor and continued without interruption or sub-
stantial change, the predecessor’s business operations.
Golden State Bottling Co. v. NLRB, 414 U.S. at 184.
Hence the focus is on whether there is ‘‘substantial
continuity’’ between the enterprises. Under this ap-
proach the Board examines a number of factors: wheth-
er the business of both employers is essentially the
same; whether the employees of the new company are
doing the jobs in the same working conditions under
the same supervisors; and whether the new entity has
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759NORTHERN MONTANA HEALTH CARE
7 The General Counsel at complaint subparagraphs 2(g) and (h) al-
leges that Northern Montana Health Care, Inc. purchased and there-
after operated Good Shepherd ‘‘through it[s] wholly owned subsidi-
ary, Northern Montana Care Center’’ and that the two entities are
a single employer operating the facility. While Northern Montana
Hospital is not specifically pled as part of the General Counsel’s sin-
gle employer theory, there was no doubt the General Counsel’s argu-
ment included the subordinate portions of the corporate parent which
employed former Good Shepherd unit employees at the Center. On
the facts of this case, the General Counsel’s pleading is sufficient.
See Automated Waste Disposal, Inc., 288 NLRB 914 (1988).
the same production process, produces the same prod-
ucts and basically has the same body of customers. See
Burns, 406 U.S. at 280 fn. 4; Aircraft Magnesium, 256
NLRB 1344, 1345 (1982), enfd. 730 F.2d 767 (9th Cir.,
1984); Premium Foods, Inc., 260 NLRB 708, 714
(1982), enfd. 709 F.2d 623 (9th Cir. 1983).
In conducting this analysis, the Board keeps in mind
the question whether those employees who have been
retained will understandably view their job situation as
essentially unaltered. See Golden State Bottling Co.,
414 U.S. at 184; NLRB v. Jeffries Lithograph Co., 752
F.2d 459 464 (9th Cir. 1985). This emphasis on the em-
ployees’ perspective furthers the Act’s policy of indus-
trial peace. If the employees find themselves in essen-
tially the same jobs after the employer transition and if
their legitimate expectations in continued union rep-
resentation are thwarted, their dissatisfaction may lead
to labor unrest. See Golden State Bottling Co., 414 U.S.
at 184.
Applying the quoted standard to the instant facts: the busi-
ness of Good Shepherd and the Center—the provision of
long-term patient care—is essentially the same, the employ-
ees working at the Center are doing essentially the same jobs
under primarily the same supervisors. The two entities pro-
vide the same service at the same facility to the same body
of customers—the inhabitants of northern Montana. As the
General Counsel and the Charging Party emphasize, the fa-
cial comparison seemingly reveals substantial continuity be-
tween the two business enterprises.
Respondent, however, strenuously contests this comparison
as facile. Counsel for Respondent notes that while Good
Shepherd was a self-contained entity essentially undertaking
on its own all necessary tasks, the Center has devolved many
aspects of its operations on Northern Montana Hospital in-
cluding finance/accounting personnel administration, labor re-
lations, records administration, and related matters. Further,
it has contracted out to the Northern Montana Hospital its on
site dietary, housekeeping, and maintenance functions.
Respondent further notes there have been a variety of
changes undertaken with respect to various aspects of facility
management, patient care, and policies and procedures. The
new administrator, Earnest McNeely, testified at length re-
garding his implementation of new quality management, pa-
tient care procedures, and facility improvements. It is clear
that modern ideas and additional resources have been added
to the perhaps more old fashioned and straitened operations
of Good Shepherd.
Administrator McNeely also testified at length to the long-
term plans to consolidate operations of the current 100-bed
long-term care Center with the smaller long-term care portion
of the Hospital in a new facility to be constructed as part of
a consolidated complex at the Hospital site. The consolida-
tion, while still substantially in future, will doubtless have a
profound effect on all Center employees.
The General Counsel and the Charging Party make several
attacks on Respondent’s arguments. First, they argue that Re-
spondent’s changes occurring after the time the General
Counsel argues Respondent’s obligation to bargain attached
are post hoc and, therefore, irrelevant to a determination of
the propriety of such a bargaining obligation. Further, they
note that many of the plans testified to by McNeely even at
the time he testified remain far in the future. Second, they
note that the types of changes which have been put in place
at the facility respecting new theories of quality control,
management, and patient care as well as the few improve-
ments which have taken place at the facility are not of par-
ticular significance given the continuance of basic operations.
Respecting the Center’s transfer of finance/accounting, per-
sonnel administration, labor relations, records administration,
and related matters to Northern Montana Hospital, the Gen-
eral Counsel notes that all such changes must be considered
from the employees’ point of view and, in that context, are
of much lesser consequence than the similarities noted.
Respecting Respondent’s contention that the dietary,
housekeeping, and groundskeeping maintenance functions at
the Center have been contracted to a separate employer, the
General Counsel and the Charging Party argue that the
Northern Montana Health family is, by application of tradi-
tional labor law criteria, a single employer and that no new,
separate or different employer is in actuality involved herein.
In support of his single-employer contention7 counsel for
the General Counsel cites the lead case of Electrical Workers
UE Local 1264 v. Broadcast Service of Mobile, Inc., 380
U.S. 255 (1965), and its progeny for the proposition that sin-
gle-employer status is established by sufficient demonstration
of interrelation of operations, common management, central-
ized control of labor relations, and common ownership.
Considering all of the above, I find in agreement with the
General Counsel and the Charging Party that there is sub-
stantial continuity of the business operation involved herein
under the Court’s standard as set forth in Fall River Dyeing,
supra. First, as noted supra, essentially the same facility,
service, employees, supervisors, and customers are involved.
Second, many of the aspects of change Respondent advances
as showing differing business entities were implemented after
the relevant time period, early September. Thus, many of the
changes implemented by McNeely were undertaken only
after his becoming administrator on September 19, 1994.
Other changes are simply not of sufficient consequence to
defeat the substantial continuities noted.
The major issue of the employment of the dietary, house-
keeping, maintenance, and grounds staff by the Hospital is
resolved for purposes of this stage of the analysis by the res-
olution of the single-employer contentions of the General
Counsel. For, if the Hospital, the Center, and Northern Mon-
tana Health Care, Inc. are a single employer, then the other-
wise significant differences in employer identity essentially
vanish other than as regards appropriate unit issues, dis-
cussed infra.
In the instant case there is little doubt that, as to the em-
ployees working at the Center facility, the Northern Montana
Hospital, the Center, and Northern Montana Care, Inc. are a
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760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Respondent argues on brief that the General Counsel is fore-
closed from taking this position because it was not raised either in
the pleadings or at the hearing. Further, Respondent cites Indianap-
olis Mack Sales & Service, 288 NLRB 1123 fn. 4 at 1123 (1988),
for the proposition that such an alternative position by the General
Counsel may not be raised for the first time on brief. Respondent’s
citation is correct. The facts asserted, however, are not. Thus, con-
trary to Respondent’s contention, I find that the General Counsel ex-
plicitly raised such an alternative position at the hearing.
At the hearing several lengthy colloquies occurred among counsel
and the judge respecting the disputed supervisory status of the li-
censed practical nurses and the implications of this dispute to the
presentation of evidence, the theory of the General Counsel and the
manner in which the issues should be framed. The General Counsel
in these colloquies took a variety of positions as noted above and
counsel for Respondent argued that the General Counsel had earlier
taken the position that under his theory Respondent would be obli-
gated to bargain respecting the licensed practical nurses irrespective
of their supervisory status. I believed that the General Counsel had
also taken the alternative position that bargaining should be required
even if the licensed practical nurses were found to be supervisors
and were excluded from the unit, in which case under this alternative
theory Respondent would not be obligated to bargaining concerning
them.
In that context the following exchange occurred:
JUDGE ANDERSON: [Initially to Mr. Robinson, Counsel for Re-
spondent]. . . Irrespective of what either the General Counsel
said to you or what you believe said, I don’t need to resolve
that, because what the General Counsel was saying to me now,
which is the only thing you have to defend against, is the Gen-
eral Counsel is not saying that anyone or any classification of
employees which are statutory supervisors, you should be obli-
gated to bargain about it, is that correct?
MR. RUIBAL [Counsel for the General Counsel]: That is cor-
rect, your Honor.
MR. ROBINSON: I don’t see how that can be consistent with
paragraph 5 allegation, except the following employees are, con-
stitute a unit appropriate for bargaining and they assert licensed
practical nurses are an inappropriate bargaining unit.
JUDGE ANDERSON: They hope to prove they’re not super-
visors. If they fail that, their backup position is take [them] out
and bargain about the rest.
MR. RUIBAL: Correct.
In my view this exchange rises to the level of a clearly expressed
alternative theory of the type at issue herein by the General Counsel.
single employer. Beyond the common ownership, common
president, and chief executive officer, the entities have a
common personnel department and centralized control of
labor relations. For example, the Hospital’s vice president of
human resources is responsible for labor relations at the Cen-
ter, the Hospital, and the Chemical Dependency Center and
was personally involved in virtually the entire hiring process
respecting the Center in August 1994. Job vacancies at any
of the three facilities are posted at all.
Further, as the General Counsel and the Charging Party
argue, the relationship of the Center to the Hospital and to
Northern Montana Care, Inc. are inextricably connected.
Thus, the acquisition of Good Shepherd was by Northern
Montana Care, Inc. with the Center serving simply as a cor-
porate vessel to operate the facility. It is clear that the Center
was acquired as part of a plan to merge the Good Shepherd’s
approximately 100-bed long-term care capacity with that of
the Hospital’s long-term bed capacity in a future consolida-
tion. A current determination—indeed an existing in place
and operational plan—that the entities will merge their facili-
ties and operations into a common, unified operation in the
future renders the current interests of the Center, the Hospital
and their parent sufficiently close that a single employer
finding would be compelled even absent the other supporting
factors noted supra.
In summary, in reliance on the excellent arguments of the
parties, the authorities cited and the record as a whole, I find
and conclude that there was substantial continuity between
the Good Shepherd and the Center through mid-September
1994.
3. Continuity of the bargaining unit
a. Arguments of the parties
The General Counsel alleges in his amended complaint at
paragraph 5 that the following employees of Respondent
constitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All licensed practical nurses, nurses aides, dietary
aides, rehabilitation aides, maintenance, laundry, house-
keepers, activity aides and ward clerk employees, ex-
cluding all professional employees, registered nurses,
administrators, activity supervisor, confidential employ-
ees, guards and supervisors as defined in the Act.
The unit alleged is the same as the Board certified unit rec-
ognized by Lutheran Home of the Good Shepherd save for
an apparent update in its job description nomenclature. Thus,
if the General Counsel establishes this unit is appropriate, the
Lutheran Home of the Good Shepherd unit and Respondent’s
unit are identical and continuity of bargaining units is estab-
lished.
Respondent contends however that its licensed practical
nurses at the facility are supervisors within the meaning of
Section 2(11) of the Act and that Respondent at no time ac-
quiesced in and continues to oppose the inclusion of any su-
pervisors in a bargaining unit.
The General Counsel meets this argument in various ways.
First, the General Counsel argues that the licensed practical
nurses are not supervisors and are, therefore, appropriately in
the unit. Second, the General Counsel advances several argu-
ments in support of his theory even if the licensed practical
nurses are found to be supervisors. In this latter category the
General Counsel argues that Respondent should have recog-
nized the Union and sought to establish agreement about the
exclusion of licensed practical nurses by means of clarifica-
tion with the Union or the Board by petition. The General
Counsel argues:
Respondent was not free to test the appropriateness of
a unit by refusing to bargain as is an employer when
testing the appropriateness of a unit at the time it is ini-
tially certified by the Board. [The General Counsel’s
brief at 19.]
As a ‘‘back-up position’’ the General Counsel argues that the
licensed practical nurses should be taken out of the unit and
Respondent be found obligated to bargain respecting the re-
maining employees.8
In a slightly different approach to the issues considered,
supra, Respondent further argues that changes occurred in the
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761NORTHERN MONTANA HEALTH CARE
9 This holding in part answers Respondent’s plaintive argument
that the Regional Director has never given it a hearing on the unit
issues it raised. Respondent is in fact entitled to such a hearing and
that opportunity occurred as part of the instant proceeding.
10 Having reached this conclusion it is not necessary to consider
Respondent’s argument that the issue respecting supervisors arose as
a result of the Supreme Court’s March 1994 decision in NLRB v.
Health Care & Retirement Corp., 128 L.Ed.2 586 (1994).
11 The recent Supreme Court decision respecting licensed practical
nurses in nursing homes, NLRB v. Health Care & Retirement Corp.,
128 L.Ed.2 586 (1994), is discussed elsewhere in this decision.
manner in which certain elements of the former bargaining
unit employees were employed. Thus, Respondent argues:
[T]he dietary, housekeeping and maintenance em-
ployees are not employed by the Northern Montana
Care Center, they are employed by Northern Montana
Hospital, and that is because there was, at least pri-
marily in the beginning, and even to a lesser extent
now, some interchange between those functions be-
tween Hospital and Care Center; for example, the main-
tenance function is covered by the same people who
deal with both the hospital and the Care Center.
In its RM petition, noted supra, Respondent proposed a unit
of patient care aides, rehabilitation aides, activity aides, and
ward clerk employees. Respondent did not suggest in the in-
stant case, however, to what unit or units the Hospital em-
ployees employed at the Center belong.
The General Counsel argues that the employees in these
departments are part of the appropriate bargaining unit under
traditional representation law community of interest stand-
ards. To the extent they are simply employed by a separate
corporation, the General Counsel argues, it has pled and es-
tablished that the Northern Montana Care family of corpora-
tions are in effect a single employer for purposes of the
successorship issues herein.
These various arguments are discussed separately below.
b. Is Respondent foreclosed from challenging the
composition of the bargaining unit prior to recognizing
the Union?
The General Counsel with the concurrence of the Charging
Party argues explicitly that Respondent may not challenge
the appropriateness of the unit prior to recognition of the
Union nor may it base a refusal to recognize the Union on
contentions of an inappropriate unit. The General Counsel
and the Charging Party ground their argument on the initial
Board certification and years of bargaining history respecting
the unit. If the LPNs, herein, are supervisors or the unit is
otherwise inappropriate, the long history of bargaining dem-
onstrates that the unit was voluntarily agreed upon. There-
fore, the General Counsel argues, the parties may not now
challenge the unit. In support of his argument, the General
Counsel cites authority for the Board’s longstanding propo-
sition that if a contract includes statutory supervisors, the
parties are required to apply the terms of the contract to the
supervisor unit members during its life.
I reject the General Counsel’s and the Charging Party’s ar-
guments as conceptually misfounded. The General Counsel’s
arguments would well apply to Good Shepherd were it to
have challenged the appropriateness of the unit in
midcontract. Respondent herein is not contended to be the
employer who voluntarily entered into such an agreement.
Rather, Respondent is contended by the General Counsel to
be a successor. Since Burns, successors have not been held
to have assumed the contract. Even were Respondent herein
held equivalent, for purposes of this analysis, to an employer
whose contract has expired, such an employer may in fact
challenge the appropriateness of the bargaining unit if it in-
cludes supervisors. As the Board noted in Arizona Electric
Power Cooperative, 250 NLRB 1132, 1134 fn. 10 (1980):
Respondent’s duty to bargain concerning them [super-
visors] would terminate on the expiration of the current
contract provided that Respondent took appropriate
steps to contest their continued inclusion in the unit.
In Washington Post Co., 254 NLRB 168 (1981), the Board
stated at 169:
While it may be that certain of the positions sought to
be excluded by a unit clarification petition have long
been included under previous contracts, and the job du-
ties of these positions have remained unchanged, none-
theless, if it can be shown that the persons in such posi-
tions meet the test for establishing supervisory . . . sta-
tus, we are compelled to exclude them.
I find no basis for denying to Respondent the same right to
review unit composition when faced with a demand for rec-
ognition based on an alleged successorship relationship, that
any employer who was not then bound by a collective-bar-
gaining agreement enjoys.9
Nor do I find that Respondent is precluded from raising
the unit issue before recognizing the Union. The General
Counsel’s argument seems to be that, irrespective of its mer-
its, as a matter of law an employer in the circumstances pre-
sented herein may not, prerecognition, assert an inappropriate
bargaining unit as a defense to a successorship failure to rec-
ognize and bargain unfair labor practice allegation. Whether
or not Respondent’s defenses prevail, surely they may be
presented in defense to the allegations of the complaint. The
General Counsel offers neither persuasive reasoning nor cita-
tion of authority for such an unusual proposition. Accord-
ingly, given all the above, I find there is no basis to preclude
Respondent’s raising the unit issues as a defense to its re-
fusal to recognize and bargain with the unit.10
c. The Appropriate Bargaining Unit at the Center
(i) The Board’s unit standards for nonacute health
care facilities11
The Board has recently devoted substantial decisional and
rulemaking time and energy addressing unit issues in the
health care industry. That course, in so far as it pertains to
nonacute health care facilities, is reviewed in Park Manor
Care Center, 305 NLRB 872 (1991), wherein the Board set
forth its standards for determining appropriate bargaining
units in such facilities in future. The Board in essence de-
clined to establish a short list of presumptively appropriate
units as it had for the acute care facilities in the Board’s
Rules and Regulations Section 103.30, see also the rule-
making record set forth at 284 NLRB 1527 (1987), and de-
termined to make unit determinations in nursing homes by
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762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Sec. 2(11) of the Act states:
The term ‘‘supervisor’’ means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in con-
nection with the forgoing the exercise of such authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.
13 There was uncontested testimony that the relatively limited pop-
ulation in the Havre commuting area limited the number of potential
job applicants during relevant periods.
adjudication. The Board held that such unit determinations
would be made by taking a broad approach considering not
only traditional community of interest factors, but the infor-
mation gathered during the rulemaking process and prior
precedent.
One such general presumption which, although left to ad-
judication under the Board’s Rules, 284 NLRB 1527, 1532
(1987), and susceptible to rebuttal, seems to remain applica-
ble to the health care industry is that of a single-facility pre-
sumption. Manor Healthcare, Corp., 285 NLRB 224 (1987).
See also Mercywood Health Building, 287 NLRB 1114
(1988). Further while the placement of licensed practical
nurses in a variety of situations remained a matter of case
by case adjudication, the general service and maintenance
units which included certified nursing assistants have not
seemed to be in controversy.
(ii) Are Respondent’s licensed practical nurses
supervisors?
The five licensed practical nurses employed at the Center
regularly are assigned the role of ‘‘charge nurse.’’ Charge
nurses are assigned a particular wing of the facility and are
responsible for the residents and staff in that area. Charge
nurses assign work to and direct the certified nurse assistants
(CNAs) in certain aspects of patient care. Charge nurses can
and do transfer, send home, or direct that employees be
called at home based on staffing requirements. In their as-
signed areas they train employees, forgive tardiness, and ap-
prove overtime. In matters respecting discipline, charge
nurses are authorized to issue oral or written warnings and
reprimands. They counsel employees on work performance,
investigate employee situations which have the potential to
require discipline, and adjust disputes between CNAs. Credi-
ble testimony was received that at least some licensed prac-
tical nurses consider themselves supervisors and that at least
some employees consider the licensed practical nurses as
charge nurses to be their supervisors.
The General Counsel in essence concedes that licensed
practical nurses as charge nurses exercise many of the au-
thorities enumerated in the statutory definition of a super-
visor contained in Section 2(11) of the Act,12 but argues
such exercises involve no more than routine or clerical acts
not requiring the use of independent judgment.
The cases cited by the General Counsel and the Charging
Party respecting the issue of use of independent judgment ad-
dress both licensed practical nurses acting as charge nurses
in the long-term care setting and other situations. The charge
nurse cases, such as Manor West, Inc., 313 NLRB 956
(1994), cited by the Charging Party, often find that much of
what charge nurses in nursing homes in a supervisor context
do is routine and/or does not involve the use of independent
judgment. In Manor West and other cases both before and
after the Board’s issuance of the lead case in the area,
Northcrest Nursing Home, 313 NLRB 491 (1993), however,
the Board has also noted that as regards the direction of
aides respecting patient care, a licensed practical nurse acting
as a charge nurse may give directions which are not routine
and involve independent judgment. The Board in these cases
following Northcrest found that such use of independent
judgment respecting patient case matters was not undertaken
‘‘in the interest of the employer’’ and was therefore not a
basis for finding the charge nurses to be supervisors under
the Act.
The Supreme Court in NLRB v. Health Care & Retirement
Corp., 128 L.Ed.2 586 (1994), specifically rejected the
Board’s Northcrest ‘‘in the interest of the employer’’ analysis
and found such charge nurse direction to aides to be evi-
dence of supervisory status.
The record evidence in this case suggests at the very least
that the licensed practical nurse employees in question have
and exercise the authority to give similar direction to staff.
Without going further, I find that there is no serious question
that the Center licensed practical nurses when acting as
charge nurses give direction to the CNAs which is not of a
routine nature and involves the use of independent judgment.
On that basis alone, I find the licensed practical nurses are
supervisors within the meaning of Section 2(11) of the Act.
(iii) Circumstances respecting the Center’s dietary,
housekeeping, and maintenance and grounds employees
I have found, supra, that the Northern Montana Health
Care, Inc., the Hospital, and the Center are a single employer
for purposes of employees employed at the Center. The fact
that the Hospital employs and supervises the dietary, house-
keeping, and maintenance and groundskeeping staff is there-
fore not necessarily a fatal impediment to including them in
the Center bargaining unit. This single-employer finding,
however, as the parties recognize, is not dispositive respect-
ing the appropriateness of such inclusion. It is appropriate to
consider each category of employees.
(a) The Center based dietary employees
The dietary staff under the Good Shepherd comprised
some 19 unit employees and additional dietary and nutrition
supervisors. As noted, supra, the Center by August 23 had
determined that due to insufficient interest among the Good
Shepherd dietary staff, there was a shortage of dietary staff
employment applicants for the Center13 and, further, that the
Hospital would supply dietary services utilizing both current
and newly hired hospital employees under the supervision of
hospital staff. Respondent’s prepared summary indicates that
the Hospital employed 19 nonsupervisory dietary employees
of whom some three were former Good Shepherd unit em-
ployees and 3 nutrition supervisors who spent the majority
of their time at the Center but, in the testimony of Collyn
Peklewsky, hospital vice president of human resources,
‘‘might work at the Hospital if we needed them there.’’ The
Hospital’s director of nutrition services physically located at
the Hospital was in charge of the nutrition services of both
the Hospital and the Center.
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763NORTHERN MONTANA HEALTH CARE
14 For example the Hospital supplied prepaid life insurance equal
to a rounded up annual wage, the Center provides an amount 50 per-
cent larger.
The dietary staff that moved over from the Hospital to the
Center, remain hospital employees. Some dietary employees
work largely at the Center with some time at the Hospital
others spend a greater portion of their time at the Hospital.
Peklewsky estimated these employees to number approxi-
mately 10. None work exclusively at the Center. Other hos-
pital employees, those who were originally hired to work at
the Center, work exclusively at the Center although they re-
main hospital employees. These essentially exclusively Cen-
ter based hospital dietary employees number 12 to 15.
(b) The Center building and grounds/maintenance staff
The Good Shepherd unit included two maintenance em-
ployees and one utility employee as well as one supervisor
of these employees. The Hospital hired all of these employ-
ees and combined them with its existing building and
grounds staff to form a group of some six employees and
two supervisors. The decision was taken to employ these em-
ployees through the Hospital to be able to provide additional
supervision by hospital managers. There was undisputed tes-
timony that the Hospital building and grounds staff work at
both the Hospital and Center locations.
(c) The Center environmental services or housekeeping/
laundry staff
The Good Shepherd employed some five housekeeping/
laundry employees. The Hospital employs some five house-
keeping employees (which are the sole positions within its
environmental services category) at the Center of whom four
are former Good Shepherd unit employees. These employees
were hired as hospital employees essentially for the same
reason as grounds employees. Peklewsky testified:
Same decision [to employee the Center based employ-
ees as Hospital employees] was made although the need
wasn’t quite as critical, the same decision on the main-
tenance, housekeeping staff, because there was a man-
ager there but the manager was fairly inexperienced and
needed the support, well, we felt, needed the support of
our more experienced management.
She testified further that the small staff at the Center is per-
manently assigned there but that in circumstances of illness
hospital based housekeeping staff are temporarily assigned to
the Center. During those periods of temporary assignment the
employees continue to receive their hospital location terms
and conditions of employment.
(d) The terms and conditions of employment of Hospital
and Center employees
The hospital employees who had previously been em-
ployed by the Hospital at the Hospital and who were phys-
ically moved to the Center on a permanent basis retained
their hospital seniority and tenure as hospital employees. Em-
ployees hired at the Center as center employees began as
new employees with no seniority irrespective of whether or
not they came from the Hospital or Good Shepherd with
prior service. Employees in the employ of the Center have
their own personnel policies and procedures. The personnel
policies which apply to hospital employees differs to some
degree from those which apply to Center staff.14
A pay matrix was created before the Center commenced
operations for all job classifications employed by either the
Hospital or the Center for those who were working at the
Center on other than a temporary basis. These wage rates are
not identical to Hospital employee rates for hospital based
employees in the same classifications. When hospital em-
ployees are temporarily assigned to the Center on a fill in
basis they retain their hospital wages and pension plan cred-
its, etc. The Center pay matrix for center based employees
includes wage rates for all classifications working at the Cen-
ter including the classifications in controversy herein. Thus
dietary employees, groundskeepers, housekeepers—even
though hospital employees—receive unique Center matrix
wages when regularly employed at the Center. When not reg-
ularly employed at the Center they receive normal hospital
wages irrespective of where they are working. An occasional
or erratic employment at the Center by a hospital employee,
therefore, does not change that employee’s wage to a Center
rate. Since the Center location pay matrix includes the
groundskeepers and technicians within the maintenance de-
partment, and since the grounds keeper and technician wage
rates were updated in February 27, 1995, it seems clear that
that department as well as the others continued to have em-
ployees sufficiently permanently assigned to the Center to
justify having a pay scale for such employees.
(iv) Conclusions regarding the center appropriate
bargaining unit
It is necessary to determine what the appropriate unit was
as of the time of the Union’s demand and immediately there-
after. A starting point is the Good Shepherd unit which the
General Counsel and the Charging Party contend remains the
appropriate unit at the Center. As the Board noted in the re-
cent decision in Trident Seafoods, 318 NLRB 738, 739
(1995):
[T]he issue in a successorship situation is not whether
a previously unrepresented unit is appropriate, but
whether a historically recognized unit is no longer ap-
propriate. [Fn. omitted.]
The issues for resolution are whether or not any or all of the
following classifications, included in the Good Shepherd
unit, should be included in the Center unit: licensed practical
nurses, dietary employees, housekeeping employees, and
grounds and maintenance employees.
As noted above, I have found the Center’s licensed prac-
tical nurses are supervisors within the meaning of Section
2(11) of the Act. As such, when their inclusion is opposed
by the employer, they are not appropriately part of a bargain-
ing unit. I shall, therefore, exclude them from the unit.
Respecting the other disputed categories, they are not by
their very nature improperly included in a long-term care fa-
cility. There has been a history of collective bargaining under
Good Shepherd with respect to them as part of the larger
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764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposed unit. Without more their inclusion in the unit would
be essentially automatic.
Respondent raises two separate issues respecting these cat-
egories of employees. Respondent first argues that these cat-
egories of employees are employed by the Hospital not the
Center. I have found supra, that the Center and the Hospital
are part of a single employer which operates these facilities.
I find, therefore, that this fact is not, standing alone, a basis
for excluding these employees.
Respondent’s second argument in this context is more sig-
nificant. Respondent notes that along with their employment
by the Hospital, the employees in these classification are
subject to Hospital as opposed to Center supervision, person-
nel polices, and practices which, as noted supra, are, to at
least some extent, different. Further, while there are many
Hospital employees in these classifications who are essen-
tially permanently at the Center, others are only there inter-
mittently and when working there on that basis receive
wages different both from Center employees and Hospital
employees working at the Center on a more permanent basis.
Thus, Respondent argues that employees in these classifica-
tions have a different community of interest from the Center
employees and the entire classifications should be excluded
from the Center unit.
Respondent’s arguments are worthy of consideration, but
when considered in the balance with other factors, they are
not in my view sufficient to support exclusion of all hospital
employed employees from the unit. Initially, all the argu-
ments herein must be judged in the context of my single-em-
ployer finding, supra. Thus, there is, in essence, only one
employer at the Center. Further, there remain important as-
pects of commonality of interest between the hospital em-
ployees who regularly work at the Center and the Center em-
ployees. The classifications employed by the Hospital and
those employed by the Center have a long history of being
in the same bargaining unit, working together in a single fa-
cility with their fellow former Good Shepherd unit members
and under Respondent continue to work together at the same
facility. The hospital employees who are permanently at the
Center—as noted supra, a significant number of employees—
are paid from a common wage matrix which they share with
Center employees and no others.
To the extent there are employees who pass between the
facilities on an ad hoc, irregular or sporadic basis, these em-
ployees clearly receive hospital terms and conditions of em-
ployment including wages taken from a wage matrix applica-
ble to Hospital based Hospital employees and independent of
the matrix applicable to all employees regularly at the Cen-
ter. Such irregular employees, as other sporadically or
impermanently employed employees under normal Board
representation law, should not be included in the Center unit,
but rather have a clearer community of interest with hospital
employees who work exclusively at the Hospital. The argu-
ments Respondent makes for excluding all the employees in
the disputed classifications from the unit in fact apply with
some force to these employees. Since it is traditional to ex-
clude from a bargaining unit those employees who are irreg-
ularly employed and have no expectancy in the future of reg-
ular employment in the bargaining unit, I find it appropriate
to exclude for the Center location bargaining unit all employ-
ees, the Center or the Hospital employed, who are irregularly
employed at the Center. Removing these employees from the
unit and therefore the classifications in contest, makes the in-
clusion of the remaining regularly Center employed employ-
ees in the unit irrespective of their classification far more sat-
isfactory.
Describing a bargaining unit’s inclusions and exclusions
on the basis of a hospital employee’s individual expectancy
of regular employment at the Center, rather than by including
or excluding entire job classifications irrespective of location
or regularity of employment, is well suited to identifying in-
dividual employee’s community of interest and segregating
employees into particular units. Such distinctions may also in
some circumstances smack of the ivory tower and, in appli-
cation, threaten not to achieve the desired matching of inter-
ests, but rather leave rough edges and loose ends which in-
vite uncertainty, controversy and future dispute. Classifica-
tions must be susceptible of practical application. Without
such practicability the unit determination made herein would
be inappropriate. I have reviewed the entire record and the
arguments of the parties respecting the unit issues with this
question in mind however, and I am satisfied that the unit
description herein is easily and unambiguously administered.
The dividing line between the Hospital employees in-
cluded in the unit and those excluded from it may be objec-
tively established by continued use of the system which was
put in place by Respondent at the time the Center opened
and has apparently been carried forward to date. Thus, the
Hospital employees who have been paid under the Hospital-
Center joint wage matrix—in evidence as Respondent’s Ex-
hibit 4A—are appropriately included in the unit. Those Hos-
pital employees who have been regarded as sufficiently tem-
porary in their service at the Center so that they remain on
the Hospital wage matrix for hospital based employees are
excluded from the Center unit as—from the Center’s per-
spective—temporary or nonpermanent employees. Thus, the
commonality of wages and expectancy of continued employ-
ment at the Center, which form the basis for retaining certain
employees in the Center unit, is the same as the work pattern
which causes Respondent to pay hospital employees under
the Center matrix. Symmetrically, the sporadic and irregular
Center employment of some hospital employees who are ex-
cluded from the unit for that reason are, for the same reason,
retained by the Hospital on the Hospital wage matrix or sys-
tem.
On this record, I believe that in a world of difficult
choices and necessary approximations, the unit found is not
only an appropriate unit but is the most appropriate unit
which may be found at the Center. As noted, the line be-
tween the Hospital employees who so regularly work at the
Center that they are included in the unit and those who work
so irregularly at the Center that they are excluded from the
bargaining unit seem difficult to apply. Importantly however,
in the instant case, Respondent has however been making
these identical distinctions throughout the life of the Center
in determining what wage to pay Hospital employees either
the Center based wage for the given classification or the
Hospital wage for that same classification. The hospital em-
ployees who, when they work at the Center, receive either
Center matrix or hospital pay according to the regularity of
their employment at the Center are equally experienced in
the different accounting of hours and remuneration. This
being so I find that Respondent would be hard put to argue
the distinctions made herein are impossible or even difficult
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765NORTHERN MONTANA HEALTH CARE
15 Respondent advances the Board’s decision in Renaissance West
Mental Health Center, 276 NLRB 441 (1985), as on point. That de-
cision addressed a successorship situation wherein the predecessor’s
unit was inappropriate for the successor, but is distinguishable be-
cause the judge with Board approval found no appropriate successor
bargaining unit could be ascertained and therefore no bargaining ob-
ligation could attach to the new employer.
to apply. It must simply continue to do what it has consist-
ently done to date and what the Board frequently does in
bargaining unit determinations, i.e., include employees in the
unit who work and expect to work regular hours and exclude
from the unit employees with irregular hours who have no
reasonable expectancy of continued Center based employ-
ment.
I am further assured that this unit determination is appro-
priate when I consider the alternatives. As noted supra, in the
health care industry an unnecessary proliferation of bargain-
ing units is to be avoided. So, too, the Board should not cre-
ate fragmentary, multifacility health care units which would
likely increase the chance of labor difficulties and disruption
of health care services. If the classifications at issue herein
are not to be included with the other noncontested classifica-
tion, in what units would they be appropriately placed? If
any or all the Hospital and Center based hospital dietary,
housekeeping, or grounds employees are held to be only ap-
propriately included as a multifacility unit, both the admoni-
tions against multifacility units and unit proliferation will
have been breached.
Given all the above, and on the basis of the record as a
whole I find the following unit is appropriate for purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
Employees of Northern Montana Health Care Hos-
pital and Northern Montana Health Care Center regu-
larly employed at the Northern Montana Health Care
Center in the following job classifications: nurses aides,
dietary aides, rehabilitation aides, maintenance, laundry,
housekeepers, activity aides and ward clerk employees,
excluding all professional employees, registered nurses,
licensed practical nurses, administrators, activity super-
visors, confidential employees, guards and supervisors
as defined in the Act and all employees irregularly em-
ployed at the Center.
d. Conclusions respecting continuity of the bargaining
unit
The bargaining unit found appropriate at the Center at the
commencement of its operations, set forth immediately
above, is different from that which had been certified by the
Board and a subject of bargaining for almost 15 years at
Good Shepherd. The units differ in substance in only a single
classification:licensed practical nurses.
Under Good Shepherd the unit description on its face in-
cluded licensed practical nurses and excluded supervisors.
The parties consistently treated all the licensed practical
nurse employees as nonsupervisors and bargained respecting
them including the results of their bargain in a series of col-
lective-bargaining agreements. The Center unit found appro-
priate herein specifically finds the classification of licensed
practical nurses at the Center to be supervisory and specifi-
cally excludes them from the unit. Respondent argues that
such a variance between the Good Shepherd and Center units
destroys the continuity of the bargaining unit necessary for
a finding of continuity of bargaining units. The General
Counsel and the Charging Party argue to the contrary.
The General Counsel and the Charging Party on brief cite
a number of Board and court cases for the proposition that
the successor bargaining unit need not be the same as the
predecessor unit, nor even be the significant portion of it.
The Charging Party cites the Board case of Stewart Granite
Enterprises, 255 NLRB 569, 573 (1981), wherein the Board
approved the following language of the administrative law
judge:
[I]t is established that successorship obligations are not
defeated by the mere fact that only a portion of a
former union-represented operation is subject to the sale
or transfer to a new owner, so long as the employees
in the conveyed portion constitute a separate appro-
priate unit, and they comprise a majority of the unit
under the new operation. Zim’s Foodliner, [Inc. v.
NLRB, 495 F.2d 1131 (7th Cir. 1974), cert. denied 419
U.S. 838 at 1141 (1975)]. Saks and Company [v.
NLRB, 634 F.2d 681 at 682 (2d Cir. 1980)]. See also
Atlantic Technical Services Corp., 202 NLRB 169, 175
(1973), and cases cited.
See also Trident Seafood Foods, Inc., 318 NLRB 738 (1995).
The main thrust of Respondent’s arguments and citations
of authorities in this area address the appropriateness of the
Center unit—a matter discussed supra—and the issues sur-
rounding the Union’s demand for recognition—an issue dis-
cussed infra. Subtracting those arguments, what seems to re-
main respecting the continuity of bargaining unit is that the
instant case differs from the situations presented in the cases
cited by the General Counsel and the Charging Party in that
the new employer herein acquired all the classifications in
the previous employer’s recognized unit. but that some of
those classifications are not properly part of the new unit.
I have found no cases which match the precise factual sit-
uation presented here, i.e., discussing successorship unit con-
tinuity where the new unit differs from the old unit not be-
cause only a portion of the operation was acquired but rather
because the old unit was inappropriate.15 I am able to per-
ceive no significant difference between a situation where the
new bargaining unit arises as a result of a partial assumption
of the predecessor’s operation or because the appropriate unit
simply excludes some of the employees previously included
in the predecessor unit. The test of unit continuity turns on
the roots or origins of the predecessor’s appropriate unit em-
ployee compliment. In both the situations discussed in the
cases cited, supra respecting partial acquisitions and the situ-
ation herein where licensed practical nurses are excluded
from a unit, the new units are both appropriate under Section
9 of the Act and have a direct relationship to a portion of
the predecessor unit.
Accordingly, based on all the above and the record as a
whole, I find that the Center bargaining unit found appro-
priate above has a close continuity and consistency with the
Good Shepherd unit.
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766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Respondent’s exhibit lists employees who starting on August 31,
1994. Given that the Center commenced full operation on that day
and there is no contention that a full compliment of employees was
not on board as of that date, it is unlikely significant changes in the
Center’s employee compliment occurred in the first fortnight or so
of its operations. Respondent does not make such a contention. Were
such a contention to have been made in the circumstances presented
here, Respondent who would have such information within its
knowledge and control, would have been obligated to present it.
17 The ratios of Good Shepherd unit employees to Center employ-
ees in various of the classifications has been set forth in earlier por-
tions of this decision for other purposes. Essentially without excep-
tion any bargaining unit proposed at the Center on this record was
comprised of a majority of Good Shepherd unit employees.
4. Continuity of the work force—the issue of majority
The test of majority applies to the employee compliment
of the new unit not the old. Thus, the new unit is examined
to determine how many of its employees were from the pred-
ecessor unit. In the instant case the test is: How many of the
employees in the Center bargaining unit found appropriate,
supra, in early September were from the Good Shepherd
unit?
Based on a comparison of the Good Shepherd unit list as
of the closure with Respondent’s lists of employees initially
working at the Center identified by classification it is pos-
sible to determine for all classifications what proportion of
the employees were from the Good Shepherd unit.16 Of the
approximately 70 employees in the Center unit, approxi-
mately 50 were from the equivalent categories in the Good
Shepherd unit. Thus, a substantial majority of employees in
the Center unit were from the Good Shepherd unit. Indeed
Respondent does not in numerical terms contest the General
Counsel’s contentions of unit majorities.17
Given all the above, I find there is very substantial con-
tinuity of work force between the Good Shepherd unit and
the Center unit.
5. Issues respecting the Union’s demand for recognition
on the Center
The Union sent the Center a demand letter dated Septem-
ber 2 which stated in part:
This is to advise you that the majority of your em-
ployees in an appropriate bargaining unit at your North-
ern Montana Care Center facility in Havre, Montana,
have designated the United Food and Commercial
Workers Union, Local No. 8 as their exclusive rep-
resentative for all such employees . . . to become ef-
fective August 31, 1994. The bargaining unit consists
of:
All licensed practical nurses, nurses aides, dietary
aides, rehabilitation aides, maintenance, laundry,
housekeepers, activity aides and ward clerk employ-
ees, excluding all professional employees, registered
nurses, administrators, activity supervisors, confiden-
tial employees, guards and supervisors as defined in
the [Act].
Respondent makes several arguments respecting the Union’s
demands which are separately addressed below.
a. Respondent’s contention that the Union’s demand did
not inform Respondent of the Union’s claim to a
successorship bargaining obligation
Respondent argues that the Union’s demand letter did not
put it on notice that the Union was claiming that Respondent
was obligated to recognize and bargain with the Union be-
cause of a successorship relationship with the Good Shep-
herd bargaining unit. Respondent makes its argument pri-
marily in the context of its good-faith doubt defense ad-
dressed, infra. It is also discussed here, however, because of
the following argument of Respondent. Respondent argues
that: (1) since the Union’s demand seemed on its face to be
based on the Union’s purported acquisition of an authoriza-
tion card majority and that Respondent had no reason to be-
lieve otherwise; and (2) since employers are not obligated to
recognize a labor organization simply because of an asserted
or, without more, even an actual acquisition of majority em-
ployee support without an election or other circumstances not
relevant herein, it follows that Respondent’s denial of rec-
ognition was proper because it was simply not on notice of
the successor theory and was entitled in law to deny recogni-
tion and seek an election under the theory of recognition the
demand letter fairly implied.
Respondent’s argument raises both factual and legal issues.
There is dispute respecting what Respondent knew or should
have known at relevant times. Further, there is the simple
legal issue of whether a demand for successorship recogni-
tion needs carry a theory of obligation to trigger the bargain-
ing obligation. I reach neither issue herein, however, because
I find that, for the reasons appearing below, the issue was
rendered moot and its resolution is therefore unnecessary to
fully address the issues raised by the complaint.
On September 16, 1994, the Union filed the original
charge herein. That charge, which the complaint alleges and
the answer admits was served on Respondent that same day,
stated in the portion of the charge form: ‘‘Basis of the
Charge’’ that the Center was refusing to recognize and bar-
gain with the Union, asserting further:
This Local Union represented employees at the Lu-
theran Home, a majority of whom were hired by North-
ern Montana Care Center. And, who comprise a major-
ity of the potential bargaining unit at the Northern
Montana Care Center.
There is no dispute that when Respondent received this
charge it understood the Union’s theory of successorship un-
derlying its demand for recognition and assertion that Re-
spondent was obligated to recognize and bargain with it.
The Board with the specific approval of the Supreme
Court in Fall River Dyeing Corp., 482 U.S. 27 (1987), holds
that a Union’s demand in a successorship setting is continu-
ing and, if not initially applicable attaches when cir-
cumstances allow. Since it is immaterial to the resolution of
the issues of this case whether the Union’s demand was suf-
ficient on September 2 or 16, and since it is not in dispute
that Respondent understood the Union’s demand to be a
successorship demand on September 16, I find that it is un-
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767NORTHERN MONTANA HEALTH CARE
18 Were it necessary to do so, I would find that a Union’s demand
letter in a successor setting need not set forth its theory of the suc-
cessor employer’s obligation to bargain. The general rule is set forth
in Al Landers Dump Truck, 192 NLRB 207, 208 (1971), enfd. sub
nom. NLRB v. Cofer, 637 F.2d 1309 (9th Cir. 1981):
The Board and the courts have repeatedly held that a valid re-
quest to bargain need not be made in any particular form, or in
haec verba, so long as the request clearly indicates a desire to
negotiate and bargain on behalf of the employees in the appro-
priate unit concerning wages, hours, and other terms and condi-
tions of employment.
19 This alternative theory of the General Counsel was found timely
raised. See fn. 8 at p. 9 of this decision, supra.
necessary to determine when during that period the demand
became sufficient in law.18
b. The consequences of the variance in the bargaining
units of the Union’s demand, the General Counsel’s
complaint, and the unit found appropriate herein
The Union in its demand letter and the General Counsel
in his complaint sought Respondent recognize the Union in
the Good Shepherd unit. The unit found appropriate herein
differs. Disregarding the nonsubstantive nomenclature
changes, the unit sought by the Union and the General Coun-
sel differed from the unit found appropriate herein in the in-
clusion of the classification licensed practical nurses. These
employees at relevant times numbered five so that the unit
sought by the Union and the General Counsel contained 75
unit employees; the unit found appropriate herein contained
70.
Respondent argues that the variance between the unit
sought and the unit found is fatal to the allegations herein.
The General Counsel and the Charging Party argue rather
that the variance is of no consequence and that, at least as
an alternative theory, Respondent should simply be ordered
to recognize and bargain with the Union in the unit found
appropriate.19
The Board with court approval holds that at least some
variation between the units in which a union seeks recogni-
tion and/ or the General Counsel alleges a failure of bargain-
ing has occurred and the unit found appropriate by the
Board. There are two types of variations discussed in the
cases: variations in the numbers of employees and variations
in the unit description or composition.
The cases suggest that differences in the numbers of em-
ployees in the units sought as compared to the units found
may vary quite widely without fatal consequences. The fol-
lowing variations in number of employees were held incon-
sequential. Fosdal Electric, 367 F.2d 784, 787 (7th Cir.
1966), enfg. 153 NLRB 85 (1965) (demand for unit of 7,
unit of 10 found appropriate, an increase of over 40 percent);
United Butchers Abbatoir, Inc., 123 NLRB 946, 956 (1959)
(demand for unit of 28, unit of 25 found appropriate, a de-
crease of over 10 percent). The difference in numbers in-
volved herein is 75 in the unit sought and 70 in the unit
found appropriate a decrease of less than 10 percent. I find
the difference in the numbers of employees involved is in-
consequential.
The Board and courts have also addressed variations in the
unit description language or classifications included or ex-
cluded on a number of occasions. Thus, in Fosdal Electric,
supra, the original demand and complaint unit addressed
electricians and helpers but the appropriate unit was found to
be production and maintenance. The variation was considered
inconsequential. The Board and court determinations that
such distinctions are inconsequential have extended not only
to general work categories but also to specially treated cat-
egories under the Act such as guards. In Dan River Mills,
Inc., 121 NLRB 645 (1958), the union sought a production
and maintenance unit which included watchmen but excluded
guards. The watchmen were found by the Board to be guards
and hence excluded by provision of the Act. The employer
sought to defend its refusal to bargain on the unit variance.
The Board held at 651: ‘‘[E]ven where guards are improperly
included in the unit for which a union seeks to bargain, this
is no defense to a charge [against an employer] of a refusal
to bargain.’’ [Fn. omitted.]
The Board cases cited above generally arose in situations
where the union demand was based on initial organizing card
majorities. Since the instant case arises in the successorship
context, the Board’s decision in Hydrolines, Inc., 305 NLRB
416 (1991), is relevant. The Board noted at 420:
A bargaining demand in a successorship situation is
made in a different context, however, from demanding
initial bargaining based on a card majority. [footnote
omitted] When a union demands bargaining based upon
a card majority, the union is aware of which group of
employees it has been organizing and wishes to rep-
resent; the employer may not. On the other hand, in a
successorship situation, the union, by making a bargain-
ing demand, is attempting to preserve its status as the
bargaining representative of an already defined unit, or
that portion of the unit which has been conveyed or
preserved. The successor, however may add employees.
It may add, eliminate, or change job classifications. It
may have plans to expand or change its operations.
[footnote omitted] The union may be unaware, or at
least uncertain, as to the successor’s plans for its hiring
and operations. Therefore, the union’s bargaining de-
mand may be made before it is clear which of the suc-
cessor’s employees belong in the unit, and the union
cannot be expected or required to take all possible con-
tingencies into account in making its demand to bar-
gain.27
27 The Board, with the approval of the Supreme Court, has pre-
viously recognized some of the unique problems a union faces when
making a bargaining demand to a successor employer. Thus, in Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 52–53 (1987), the Court
held that the ‘‘continuing demand’’ rule is reasonable. The Court rea-
soned that the rule ‘‘places a minimal burden on the successor and
makes sense. . . .’’ The Court noted that this was true ‘‘[b]ecause the
union has no established relationship with the successor and because it
is unaware of the successor’s plans for its operations and hiring, it is
likely that, in many cases a union bargaining demand will be pre-
mature.’’ The Court noted, by contrast, that in the initial recognition
context the union ‘‘is in the best position to have access to the relevant
information—whether the union has the majority support of employ-
ees.’’ Id. at 53 fn. 19.
The Board cases cited, supra, regarding variance in the
unit inclusions and exclusions between and among union ini-
tial organizing card majority demands, unfair labor practice
complaints and appropriate unit findings convince me that,
even were this case such an initial organizing card majority
case, the variations at issue herein are inconsequential. The
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768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The presumption is not limited to a presumption that the former
employees of the predecessor support the union, rather, in essence,
there are dual presumptions: (1) that a majority of the former em-
ployees of the predecessor support the Union and (2) that a majority
of the other employees not from the former unit support the Union.
Jose Costa Trucking, 631 F.2d 604 (9th Cir. 1980), enfg. 238 NLRB
1516 (1978).
fact that the instant case is a successor case and governed
by the teachings of Hydrolines, Inc., supra, Fall River Dye-
ing Corp., supra, and Finishing Corp. v. NLRB, as quoted
immediately above, redoubles my conviction that the vari-
ations between demand, complaint, and the ultimate Center
bargaining unit are immaterial to the resolutions of the issues
of the case.
Another aspect of unit variation defenses raised by em-
ployers and discussed in the cases—and independent of the
merits of the other issues discussed above—is whether or not
the variation in the unit sought and the unit found would as
a matter of fact have had any real effect on the employer’s
refusal to bargain. Thus, the court in David Wolcott Kendall
Memorial School v. NLRB, 866 F.2d 157 (6th Cir. 1989),
enfg. 288 NLRB 1205 (1988), recognized a divergence in the
unit sought by the union and alleged by the General Counsel
and that found by the Board to be appropriate. The court
found the divergence concerned only five individuals and did
not justify the employer refusal to bargain. The court further
noted, however, that the employer had based its refusal to
bargain on other aspects of the case not sustained by the
Board or court and held, at 161:
Nothing in the record disclosed that [the employer]
would have recognized and bargaining with the Union
even if the unit [had not been at variance].
Similarly the court in Shipbuilders v. NLRB, 320 F.2d 615,
617–618 (3rd Cir. 1963) cert. denied sub. nom. Bethehlem
Steel Co. v. NLRB, 375 U.S. 984 (1973), enfg. 133 NLRB
1347 (1960), sustained the Board in finding ‘‘more apparent
than real’’ and hence not tenable the contention of an em-
ployer that it was relieved of an obligation to bargain be-
cause the unit alleged by the General Counsel contained
‘‘personnel classifiable as supervisors and within the purview
of the statute.’’ The administrative law judge, with Board ap-
proval, had found the supervisory inclusion issue while real
and ongoing between the parties was insignificant and not a
factor in comparison to the substantial issues raised, 133
NLRB at 1349.
On this record, and in particular relying on Respondent’s
consistently held view that the bargaining unit did not in-
clude the hospital employees as well as the licensed practical
nurses and that it had a good-faith doubt of the Union’s ma-
jority in the unit, I find that, even had the Union demanded
recognition in the unit found appropriate herein and the com-
plaint contained the unit description found appropriate herein,
Respondent would have continued to (1) deny the appro-
priateness of the unit and (2) assert that it had a good-faith
doubt of the Union’s majority. Thus, I find, as in Kendall
Memorial & Marine Workers, supra, that the unit variation
among the Union’s demand unit, the General Counsel’s com-
plaint unit and the unit found appropriate herein did not
cause Respondent to change its conduct. More particularly,
I find that even if the Union had demanded recognition in
the unit found appropriate herein and the General Counsel
had alleged the same unit in the complaint, Respondent
would have at all times material refused to recognize the
Union based on the two contentions: (1) that the unit was in-
appropriate as not in conformity with the unit set forth in Re-
spondent’s RM petition and (2) that Respondent has a good-
faith doubt respecting the Union’s majority in the unit. Re-
spondent’s asserted ‘‘unit variation’’ defense therefore, even
were it not to have been found to be without merit above,
would be, for this independent reason, untenable.
In summary, I have found that the variations in both num-
ber of employees and unit inclusions between the Good
Shepherd unit alleged as appropriate in the Union’s demand
letter, in the General Counsel’s complaint, and in the unit
found appropriate herein are inconsequential and not a de-
fense to Respondent’s obligation to recognize and bargain
with the Union respecting the unit found appropriate herein.
I have found that the General Counsel at the hearing took
the position in colloquy with the judge and Respondent’s
counsel, as an alternative theory of a violation, that, in the
event the unit alleged in the complaint was found to inappro-
priately include licensed practical nurses, Respondent should
be ordered to recognize and bargain with the Union respect-
ing the unit found appropriate. I found this to be a timely
raising of the alternative theory of a violation under the com-
plaint. Finally, I found that, in all events, the unit variations
did not cause Respondent to fail and refuse to recognize and
bargain with the Union and, had the variations not occurred
and all unit references in the Union’s demand letter and the
General Counsel’s complaint been to the very unit found ap-
propriate herein, Respondent would still have refused to rec-
ognize and bargain with the Union respecting the unit em-
ployees.
Given all the above for the reasons noted and based on the
record as a whole, I find that the variations in the units con-
tained in the Union’s demand letter and the General Coun-
sel’s complaint as compared to the unit found appropriate
herein do not provide Respondent with a defense to the un-
fair labor practice allegations contained in the complaint.
6. Conclusions respecting successorship and
its consequences
In summary of my findings above, I have found that be-
tween the Board certified collective-bargaining unit of the
Good Shepherd extant through August 30, 1994, and the
Center unit found appropriate herein on and after August 31
through on or about the first half of September 1994:
(1) There was continuity of the employing industry.
(2) There was continuity of the bargaining unit.
(3) There was continuity of the work force, i.e., a majority
of the new employer’s unit members were from the old em-
ployer’s unit.
(4) There was a timely and appropriate Union demand for
recognition.
(5) There were no other procedural or substantive impedi-
ments to a finding of successorship.
Having made these findings I further find and conclude
that Respondent was a successor to the Center and, as a re-
sult of that successorship and the timely union demand for
recognition, the Union enjoyed a rebuttal presumption of ma-
jority support in the unit found appropriate herein.20
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769NORTHERN MONTANA HEALTH CARE
7. Respondent’s good-faith doubt defense
a. Good-faith doubt in a successor context
A successor employer is faced with a rebuttable presump-
tion that the union represents a majority of employees in the
unit. To avoid an obligation under the Act to recognize and
bargain with the union, the employer must demonstrate either
that the union does not in fact have the support of a major-
ity—a contention not truly in issue herein—or, in the alter-
native, demonstrate by objective evidence that it had a good-
faith doubt of the union’s continuing majority. The Board in
Harley-Davidson Co., 273 NLRB 1533 (1985), overruling
previous inconsistent holdings, held that a successor em-
ployer who recognized a union and commenced bargaining
with it could also end its obligation to bargain by a similar
showing. Thus, after Harley-Davidson, supra, the successor
employer who had recognized the union and thereafter with-
drew recognition and the employer who had refused at all
times to recognize the union could justify their conduct by
showing actual loss of majority or making a traditional
‘‘good faith doubt’’ showing. The only limitation on such a
demonstration was one of timing: an employer could not as-
sert as a basis for its good-faith doubt of that majority acts
or conduct that occurred after the employer withdrew or
withheld recognition of the union.
b. Respondent’s assertions and arguments respecting
good-faith doubt
Respondent’s arguments respecting its good-faith doubt in
the instant case are sufficiently unusual that it is appropriate
to quote its brief with respect to them:
The good faith doubt asserted by the successor in the
instant case is not of the kind which is typically as-
serted by and in this context. Here the alleged successor
knew nothing of the bargaining history between the
parties and knew nothing about the support or lack of
the same, which the Union may have enjoyed between
1981 and 1994 when it was dealing with the [Good
Shepherd] facility. Rather, the successor’s good faith
doubt is predicated upon the actual statements and con-
duct of the Union itself when it was confronted with
the [Center’s] acquisition of the [Good Shepherd] nurs-
ing home facility and its potential status as a successor.
[R. Br. 27–28.]
Respondent identifies several circumstances which support
the above argument. First, it notes that the union agents in
closure and related negotiations with counsel for Good Shep-
herd in August told Good Shepherd counsel that it would
seek to represent the new employer, i.e., the Center, in ‘‘the
old fashioned way—we will earn it’’ and that the statement
was soon reported to Respondent’s agents.
Second, the Union in a memorandum to Good Shepherd
employees dated August 29, 1994, after addressing concerns
relevant to Good Shepherd stated:
As we leave this very difficult transition period and
embark upon another challenge—recognition and a new
contract—with Northern Montana Care Center, it is
doubly important that we continue to work together. If
you have not already done so, please sign an ‘‘Author-
ization for Representation’’ card and return it to your
Union. And, so that we may better analyze our position
in future dealings with the Northern Montana Care
Center, please complete the enclosed ‘‘Post Closing
Questionnaire’’ and return it to your Union’s office in
the enclosed postage paid envelope.
We have all enjoyed the fruits of all our labors in
the past, but we must now continue in our effort to
seek recognition and get a new labor Agreement.
Consistent with the memorandum, the Union solicited em-
ployees at work to sign standard initial organizing authoriza-
tion cards and this fact was observed by and reported to Re-
spondent’s agents.
Third, Respondent notes the Union’s demand letter was a
typical initial organizing demand letter and ‘‘conspicuously
omitted any reference to successorship’’ (R. Br. 25.)
Further, Respondent argues that the impact of the Supreme
Court’s decision in Health Care on the supervisory status of
the Center’s licensed practical nurses and the other changes
in the Center’s dietary and maintenance operations ‘‘made
the Union’s card-based organizational effort a plausible strat-
egy under the circumstances.’’
Respondent’s legal argument from these events starts with
the uncontroverted position that consideration of a good-faith
doubt defense must include a review of the ‘‘totality of the
circumstances,’’ citing Hawaii Carpenters Trust Funds v.
Waiola Carpenter Shop, 823 F.2d 289 (9th Cir. 1987). Coun-
sel for Respondent further notes that the good-faith doubt, al-
though necessarily based on objective facts, must be consid-
ered from the employer’s perspective. Further, an assessment
of the cumulative effect of the combination of factors is re-
quired. Dalewood Rehabilitation Hospital v. NLRB, 566 F.2d
77, 80 (9th Cir. 1977).
Respondent also calls attention to the Tenth Circuit Court
of Appeal’s decision in NLRB v. Oil Capital Electric, Inc.,
5 F.3d 459 (1993), which, although containing other factors
and aspects, found as supportive of an employer’s assertions
of good-faith doubt of the union’s continuing majority, the
fact that the union had attempted an organizing campaign
which failed.
c. The response of the General Counsel and the
Charging Party
The General Counsel and the Charging Party addressed
each of Respondent’s contentions. Respecting Union Agent
Crane’s purported statement to Good Shepherd’s counsel that
the Union was going to have to organize the Center the ‘‘old
fashioned way, they were going to have to earn it,’’ they
urge the statement must be taken in its context. Thus they
argue that the statement occurred during a process of dual,
two party negotiations between, first, Respondent and Good
Shepherd respecting the terms of the acquisition agreement
and, second and independently, Good Shepherd’s negotia-
tions with the Union respecting closure effects.
The General Counsel and the Charging Party adduced evi-
dence which showed that Good Shepherd and the Center, as
a result of specific conscious intent and design, took special
and extensive precautions in their agreement to insure that no
successorship obligation accrued to Respondent respecting
Good Shepherd’s collective-bargaining agreement with the
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770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Without going into significant detail respecting an area of law
not relevant herein. The courts have addressed situations where pred-
ecessor employers as a result of contractual provisions respecting
successorship have created arguable rights on behalf of the contract-
ing union based on that contract. See, e.g., Howard Johnson Co. v.
Detroit Local Joint Board, Hotel & Restaurant Employees, 417 U.S.
249 (1974); John Wiley & Sons v. Livingston, 376 U.S. 543 (1964).
Successorship disavowal language in an acquisition agreement be-
tween predecessor and successor employers is irrelevant to the Burns
type of successorship involved herein, and, without doubt, skilled
labor counsel for both Good Shepherd and Respondent knew this
was so.
22 Union Agent Crane testified that the Union undertook the orga-
nizing campaign in July or August at a time it knew the changeover
was coming but had not as yet occurred. He stated that the Union
was simply preparing for contingencies, if the new entity hired a ma-
jority of Good Shepherd employees, successorship would be a basis
for claiming recognition, if ‘‘there weren’t a majority by the new en-
tity, then we were prepared to go the organizational route.’’
23 The General Counsel specifically disclaimed at the trial any con-
tention that the Union’s authorization cards were to be relied on in
establishing the necessary union majority herein.
Union.21 It was when Union Agent Crane was finally shown
the language of the Good Shepherd—Center acquisition
agreement that he made the remark attributed to him. Thus,
the General Counsel and the Charging Party suggest that the
remark simply meant that the Union recognized that it could
not utilize the agreement entered into between Good Shep-
herd and the Center as an independent basis for continuity
its representation of the unit and that it would have to deal
directly with the Center, i.e., the old fashioned way. Thus,
they argue that the remark was not related to the Union’s ac-
tions respecting the Center, be they based on a successorship
relationship under Burns, supra, or some other organizational
action. Finally, they suggest that Respondent’s agents were
well aware of this distinction and, accordingly, the second
hand report by Good Shepherd’s counsel to Respondent’s
agents that the Union had told Good Shepherd it would be
going directly to the Center the old fashioned way is not ob-
jective evidence tending to support doubts of anything rel-
evant to the issues herein.
Meeting Respondent’s arguments that its knowledge of the
fact that the Union was distributing traditional authorization
cards was objective evidence to Respondent that the Union
itself doubted its successorship status and intended rather to
organize employees by means of a card majority, the General
Counsel and the Charging Party make essentially two argu-
ments. The first is that the fact of the Union’s card solicita-
tion efforts in this context is not demonstrative of either the
Union’s doubts of the existence of a successorship or a belief
that the Union lacked majority support among employees,
but rather is evidence only of simple Union prudence that it
would still be able to seek recognition in the event the new
employer’s hiring did not produce a majority of Good Shep-
herd employees in the new unit.22 The second argument is
that, in all events, the circumstance that the Union engaged
in card solicitation under any analysis is of the most minimal
consequence and of little worth in sustaining Respondent’s
asserted good-faith doubt.
d. Analysis and conclusions respecting Respondent’s
assertion of good-faith doubt
At the onset of the analysis it is appropriate to consider
just what the doubts asserted by Respondent specifically con-
cern. The bulk of the evidence offered by Respondent seem
offered to support the proposition that Respondent had good-
faith doubts about the coming into existence of a
successorship relationship ab initio. Only a very small por-
tion of Respondent’s evidence was offered to suggest that, ir-
respective of successorship or no, certain of the employees
of the Center indicated they did not support the Union.
Thus, there was some testimony that Respondent became
aware that a relatively small number of employees indicated
a lack of support for the Union. This is classic good-faith
doubt evidence but is, as the General Counsel and the Charg-
ing Party argue, very far short of the mark in terms of num-
bers of employees involved to sustain the defense asserted.
While it is clear that in asserting a good-faith doubt, Re-
spondent need not establish hard numbers regarding loss of
majority, it may not rely on evidence that only a few out of
many in the unit expressed lack of support for the Union. In-
deed Respondent does not specifically allude to or advance
this evidence on brief in support of its good-faith defense.
As noted, supra, I find that no showing or indeed argument
on brief was made that the employees had in fact abandoned
their support for the Union or that Respondent had objective
evidence to sustain a good-faith doubt based on such evi-
dence.
The heart of Respondent’s argument is not that, after a
successorship occurred, it formed a good-faith doubt that a
majority of its unit employees supported the Union. Rather
Respondent is asserting it had a good-faith doubt that a
successorship obligation ever came into being. A doubt re-
specting majority employee support for a union is measured
by evidence relevant to unit employee sentiments. Evidence
relevant to an employer’s doubts about the existence of a
successorship is a far broader and legally different matter.
For example, Respondent at page 35 of its brief asserts that
there are 5 uncontroverted facts which support its assertion
of a good-faith doubt. Facts 4 and 5 of the listed facts are,
as number 4, the change in the law relevant to the super-
visory status of licensed practical nurses and, as number 5,
the fact that the Hospital employed the dietary and mainte-
nance employees at the Center. These facts have no possible
bearing on particular employee sentiments respecting the
unit. Rather they are solely relevant to the question, the unit
and whether or not a successorship relationship existed be-
tween Good Shepherd and the Center.
The first three enumerated facts in the list of five facts in
Respondent’s brief offered in support of its good-faith doubt
are the three union actions asserted by Respondent as show-
ing that the Union itself had doubts respecting successorship.
Thus, the asserted facts are: (1) the Union’s announcement
to the predecessor it would take action ‘‘the old fashioned
way,’’ (2) that the Union engaged in a card campaign, and
(3) that the Union’s demand letter contained no reference to
successorship. All three are offered to support the propo-
sition, not that the Union’s organizational effort failed,23 but
that this evidence allowed Respondent to come to the good-
faith belief that the Union itself doubted it was a successor
or that its successor theory was valid. Respondent then ar-
gues the apparent doubt of the Union respecting
successorship objectively supported its own good-faith doubt
that a successorship relationship existed.
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771NORTHERN MONTANA HEALTH CARE
24 In an initial organizing setting where an employee is held to
support the union only when he or she overtly manifests such an in-
tention and usually does so to the union and without the employer’s
knowledge, it is the union which is ‘‘in the know’’ and the employer
which is likely ignorant of the extent of employee union support. In
a successorship context the employee sentiments which are at issue
are entirely represented in the fact of their immediately previous
former employment in the represented unit. I find that no employer
may reasonably assert that it did not know or reasonably could not
have known which of the employees it has hired had been very re-
cently employed by the predecessor employer. Thus in a normal
successorship setting, free from highly unusual facts such as those
presented in Pick-Mt. Laurel Corp., 239 NLRB 1257 (1979), enf. de-
nied 625 F.2d 476 (3rd Cir. 1980), no reasonable doubt could exist
on the part of the employer that a successorship relationship existed
or that a majority of its unit employees came from the predecessor
unit.
25 This being so, to the extent Respondent has asserted such de-
fenses, I make no findings respecting the sufficiency of the objective
evidence offered to support such argued good-faith doubts. See,
however, a related issue discussed in the remedy section, infra.
To the extent Respondent asserts doubts respecting
successorship independent of union majority, I reject the ar-
guments as a matter of law. Thus, I find the Board’s tradi-
tional good-faith doubt defense extends only to the narrow
issue of employee support. To the extent, Respondent sug-
gests that successorship may be defended against by estab-
lishing a good-faith doubt about matters other than union ma-
jority support among employees, such a good-faith defense
fails as a matter of law. For example, the Court in Fall River
Dyeing Corp., supra, 482 U.S. at 44 fn. 16, noted that good-
faith doubts respecting successorship as to the time a rep-
resentative compliment of employees was employed might
produce a good-faith recognition of a union that was pre-
mature or might cause an employer to improperly withhold
recognition from a union. In each case the Court noted it as-
sumed a ‘‘good faith’’ violation of the Act would be found
by the Board.
I also find that Respondent’s argument that an employer
may rely on the Union’s doubts respecting its majority are
inapplicable when the issue is whether or not a successorship
relationship came into existence. As the Board’s analysis in
Hydrolines, Inc., 305 NLRB 416 (1991), quoted from supra,
and the Fall River Dyeing decision on which it heavily re-
lies, indicates, in a successorship situation it is the employer
who is in by far the better position to know if a
successorship relationship has been created than the union.24
Thus, as herein, the employer has a better knowledge of what
the appropriate unit will be, the numbers of employees in the
unit and which of those employees were from the former em-
ployer. The Union herein, on September 2, 1994, only 2 days
after Respondent’s August 31, 1994 commencement of oper-
ations, could only be uncertain respecting each of these criti-
cal elements. Given all the above, I find that Respondent
could not assert as a defense to the allegations herein, in reli-
ance on the Union’s alleged doubt or otherwise, that it had
any good-faith doubts about the successorship or the fact that
a majority of its unit employees had been employed by Good
Shepherd in the unit.
Given all the above, and having given serious consider-
ation to the contentions of Respondent respecting its claims
of good-faith doubt, I make several independent findings.
First, I find Respondent has not established by objective evi-
dence that it had a good-faith belief that the presumption of
unit employee majority support for the Union arising from
the successorship relationship, found supra, had been rebut-
ted by employee actions or sentiments. Thus I find, as noted
supra, and I do not believe Respondent seriously contended
otherwise, that Respondent did not have a supportable good-
faith doubt that the Union had lost its presumption of major-
ity through subsequent employee expressions of dissatisfac-
tion or lack of support for the Union.
I further find that Respondent on this record has not suc-
cessfully asserted as a defense that it has a good-faith doubt
that a successorship had occurred. As part of this finding, I
find that Respondent may not assert that it had any doubts
that a majority of its unit employees had been employed in
the Good Shepherd or predecessor bargaining unit. Rather, I
explicitly find that Respondent either well knew or should
have known the identity of the employees in its unit and
whether or not they had been employed in the predecessor
unit in the immediately preceding period. I further find in
this regard that Respondent may not as a matter of law assert
as a defense to the failure to recognize and bargain allega-
tions at issue herein that it has a good-faith doubt concerning
any of the other aspects of a successorship relationship. Thus
for all the reasons set forth above, I reject as legally insuffi-
cient any claims that Respondent has a good-faith doubt as
to such nonmajority elements of successorship such as the
date a representative compliment of employees was em-
ployed, the appropriateness of the successor unit, the number
of employees in the unit or like and related arguments not
sounding directly in a claim that Respondent, based on ob-
jective evidence, had a good-faith doubt that its unit employ-
ees supported the Union.25
In summary, I find that Respondent’s good-faith doubt de-
fense fails in part in its factual assertions and in part in its
underlying legal theory and that, based on all the above and
the record as a whole, Respondent’s good-faith defense is
without merit.
8. Summary and conclusions respecting Respondent’s
alleged obligation to recognize and bargain with
the Union
Summarizing my findings and conclusions supra, I found
that the Union had been certified by the Board as exclusive
representative of and had long bargained concerning a unit
of employees employed by the Lutheran Home of the Good
Shepherd, Inc. at its facility in Havre, Montana, until its sale
effective August 31, 1994. I further found that Respondent
acquired and commenced operations of the former Good
Shepherd facility without hiatus on August 31, 1994.
I have found that Respondent in its operation of the facil-
ity is a successor to the Lutheran Home of the Good Shep-
herd, Inc. I found the following unit to be appropriate for
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act and the successor bargaining unit:
Employees of Northern Montana Health Care Hos-
pital and Northern Montana Health Care Center regu-
larly employed at the Northern Montana Health Care
Center in the following job classifications: nurses aides,
dietary aides, rehabilitation aides, maintenance, laundry,
housekeepers, activity aides and ward clerk employees,
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772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
excluding all professional employees, registered nurses,
licensed practical nurses, administrators, activity super-
visors, confidential employees, guards and supervisors
as defined in the Act and all Hospital employees irregu-
larly employed at the Center.
I have found that the single employer of the successor bar-
gaining unit set forth immediately above includes the Center,
the Hospital and Northern Montana Care, Inc.
I have further found that in early September 1994 the suc-
cessor unit had a representative compliment of employees, a
substantial majority of whom were from the predecessor unit
of Good Shepherd. Given the finding of successorship and
majority employee continuity between the union represented
predecessor unit and the successor unit, I found that a pre-
sumption of majority support for the Union arose by oper-
ation of law.
During the early part of September 1994, the Union made
upon Respondent a legally sufficient demand for recognition
and bargaining in a unit not at consequential variance from
the successor unit set found appropriate above. Respondent
was unable to demonstrate that at relevant periods, in fact,
a majority of Respondent’s unit employees’ no longer sup-
ported the Union. Nor was Respondent able to establish by
objective evidence that it had a good-faith belief that the
Union lacked majority support among unit employees. Ac-
cordingly, I further found that upon receipt of a legally suffi-
cient demand for recognition in a unit not at consequential
variance from the successor unit, Respondent was obligated
to recognize and bargain with the Union respecting that unit.
Respondent having been obligated to recognize and bar-
gain with the Union respecting its unit employees, and there
being no doubt that all times material to date it has failed
and refused to do so, I further find that the General Counsel
has sustained the allegations of the complaint and that Re-
spondent, by failing and refusing to recognize and bargain
with the Union respecting unit employees since the receipt
of the sufficient demand has violated Section 8(a)(5) and (1)
of the Act.
REMEDY
Having found that Respondent has violated the Act as al-
leged, I shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the pur-
poses and policies of the Act.
I shall direct, as is usual in successor situations, Respond-
ent to recognize and bargain with the Union and make unit
employees whole for any losses they suffered as a result of
Respondent’s failure to recognize and bargain with the
Union, with interest as calculated in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
I shall also direct Respondent, upon request by the Union,
restore the status quo ante respecting terms and conditions of
unit employees’ employment. noted supra, a dispute exists
respecting when Respondent was fairly appraised of the the-
ory of the Union’s demand. While I have found that the de-
mand need not have given a legal theory in support, I am
also mindful of the Supreme Court’s suggestion in NLRB v.
Fall River Dyeing Corp., 482 U.S. 27 fn. 19 at 53 (1987),
that in certain successorship cases involving good-faith em-
ployer mistakes respecting other aspects of successorship, the
Board might adjust its remedial order. Accordingly, for pur-
poses of remedy only, I find that the bargaining obligation
should be regarded as ripening on September 16, 1994, a
time when there is no dispute that Respondent was fully ap-
prised of the Union’s successorship theory. Thus, the ‘‘ante’’
date herein is September 16, 1994.
In view of the total rejection of the Union explicit in Re-
spondent’s violation of the Act, I shall also include a broad
cease-and-desist order. See Hickmont Foods, 242 NLRB
1357 (1979).
In light of my single employer finding, supra, Northern
Montana Health Care, Inc. and Northern Montana Hospital
shall be jointly and severally liable with Northern Montana
Center for carrying out the terms of this order.
On the basis of the above findings of fact and the record
as a whole, I make the following
CONCLUSIONS OF LAW
1. The Center is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union was certified as the representative of and
had a long period of bargaining respecting a unit of employ-
ees employed by the Lutheran Home of the Good Shepherd
at its Havre, Montana facility until its sale effective August
31, 1994.
4. Respondent is a successor to the Good Shepherd in the
unit set forth below operating the facility at all times on and
after August 31, 1994.
5. Respondent, the Northern Montana Health Care, Inc.
and the Northern Montana Hospital are a single employer
employing the unit set forth below.
6. The following unit is appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the Act
and is the successor bargaining unit to the Good Shepherd
unit noted above:
All employees of Northern Montana Health Care
Hospital and Northern Montana Health Care Center
regularly employed at the Northern Montana Health
Care Center in the following job classifications: nurses
aides, dietary aides, rehabilitation aides, maintenance,
laundry, housekeepers, activity aides and ward clerk
employees, excluding all professional employees, reg-
istered nurses, licensed practical nurses, administrators,
activity supervisors, confidential employees, guards and
supervisors as defined in the Act and all Hospital em-
ployees irregularly employed at the Center.
7. The Union demanded recognition of Respondent on
September 2, 1994, as the representative of unit employees.
8. As a result of the successorship the Union enjoyed a re-
buttable presumption of majority employees support amongst
bargaining unit employees.
9. Respondent did not have a good-faith doubt that a ma-
jority of unit employees supported the Union at relevant
times.
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773NORTHERN MONTANA HEALTH CARE
10. Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing at all times since September 2, 1992,
to recognize and bargain with the Union respecting the unit
set forth above.
11. The above unfair labor practice constitutes an unfair
labor practices effecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
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