T.L.C. of St. Petersburg, Inc.

National Labor Relations Board - Board Decisions

May 18, 1992

307 N.L.R.B. 605 (N.L.R.B. 1992)

605
307 NLRB No. 100
T.L.C. ST. PETERSBURG
1 In view of our decision, we need not reach the Respondent’s ex-
ception to the judge’s statement that the Respondent was required to
demonstrate that 42 of the 82 unit employees had repudiated the
Union.
2 In addition to the remedy by the judge, we shall order the Re-
spondent to make whole unit employees for any losses incurred as
a result of the Respondent’s unilateral implementation of a new ben-
efits package, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), the amounts
to be computed in the manner set forth in Ogle Protection Service,
183 NLRB 682 (1970), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
3 See NLRB v. Curtin Matheson Scientific, 110 S.Ct. 1542 (1990);
Burger Pits, 273 NLRB 1001 (1984); Master Slack Corp., 271
NLRB 78 (1984).
4 As the judge noted, Sofco, Inc., 268 NLRB 159 (1983), on which
the Respondent relies, is distinguishable; for, in that case, the super-
visor who heard the employee repudiations testified and was subject
to cross-examination concerning the statements and their surrounding
circumstances. Such testimony by those who heard the employee
statements is necessary in order to determine whether the employees
unequivocally repudiated the Union. Indeed, it is, at the least, ques-
tionable whether the employees who allegedly told Richardson they
did not want to sign the decertification petition until they heard
‘‘what promises Beaudoin would make to them’’ made statements
amounting to unequivocal repudiations of the Union.
5 Beaudoin testified that he relied on a petition signed by 30 em-
ployees, the employee statements discussed above, written resigna-
tions from the Union, the relatively small number of employees who
had authorized dues checkoff.
6 We also reject the Respondent’s suggestion that, even if each
factor on which Beaudoin relied cannot be established objectively,
Continued
T.L.C. St. Petersburg, Inc. and 1115 Nursing Home
and Hospital Employees Union—Florida,
Division of 1115 Joint Board. Case 12–
CA–14336–1
May 18, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On November 18, 1991, Administrative Law Judge
Richard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel and Charging Party filed answer-
ing briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
1. The judge found, and we agree, that the Respond-
ent has not established a good-faith doubt, based on
objective considerations, that the Union no longer en-
joyed the support of a majority of the unit employees.3
In so doing, we reject the Respondent’s exception to
the judge’s decision to attach no weight to hearsay tes-
timony by the Respondent’s president, Gerard
Beaudoin, concerning statements allegedly made to
employee Ruthie Richardson and Supervisor Brenda
Adams and conveyed to Beaudoin, in which certain
employees purportedly repudiated the Union.
In order to justify the serious step of withdrawing
recognition without an election, the Board requires that
the bases on which an employer relies be objectively
established. Bolton-Emerson, Inc., 293 NLRB 1124,
1127 (1989); Terrell Machine Co., 173 NLRB 1480,
1481 (1969), enfd. 427 F.2d 1088 (4th Cir. 1970), cert.
denied 398 U.S. 929 (1970). Here, the Respondent has
demonstrated only that Richardson and Adams con-
veyed purported employee statements to Beaudoin;
neither Richardson nor Adams testified as to the state-
ments made to them by the employees. Without the
testimony of Richardson and Adams concerning the
circumstances surrounding the employees’ alleged
statements, the Respondent has not satisfied its burden
of proving that its good-faith doubt that the Union lost
its majority status was based on objective factors and
the judge properly accorded no weight to that aspect
of Beaudoin’s testimony.4
The Respondent argues that, even if each of the fac-
tors5 on which Beaudoin relied is alone insufficient to
support a good-faith doubt, ‘‘the cumulative force of
the combination of [these] factors’’ nonetheless estab-
lishes that the Respondent was justified in withdrawing
recognition from the Union. We disagree.
The Respondent’s reliance on the small number of
employees authorizing dues checkoff to support its
good-faith doubt is misplaced. That is because, as the
judge noted, the number of employees who have au-
thorized the checkoff of union dues does not indi-
cate—particularly in a right-to-work State such as Flor-
ida—how many employees favor union representation,
whether or not they are members of the union. Simi-
larly, as discussed above, the alleged oral employee
statements purportedly repudiating the Union are of no
evidentiary value. The remaining factors cited by the
Respondent, whether considered individually or collec-
tively, do not constitute sufficient objective consider-
ations to warrant a good-faith doubt of the Union’s
continued majority support. Except for the 30 signa-
tures on the petition, and arguably the 7 written res-
ignations from the Union, the factors relied on by the
Respondent are unreliable and unpersuasive indicators
of employee sentiment. Thus the Respondent has not
met its burden of showing that its withdrawal of rec-
ognition was based on objective evidence sufficient to
establish that it had a good-faith belief of a lack of
majority support. Therefore, the Respondent’s with-
drawal of recognition and unilateral changes in em-
ployees’ terms and conditions of employment violated
Section 8(a)(5) and (1) of the Act.6
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they nonetheless should be considered in determining his good faith
in withdrawing recognition from the Union. The standard the Re-
spondent proposes would alter the test from one of objective consid-
erations to one in which the Respondent’s good faith could be estab-
lished by subjective factors. We decline to depart from longstanding
precedent.
7 See also East Texas Steel Castings Co., 191 NLRB 113, 114
(1971) (any doubt about union’s desires resolved by filing of charge
and issuance of complaint).
2. For the reasons stated by the judge, we reject the
Respondent’s exception to the judge’s finding that it
had an obligation to respond to the Union’s letters of
August 30, 1990, and January 11, 1991. Assuming for
argument’s sake that the Respondent treated the Au-
gust 30 letter as simply a statement of its contractual
obligation to provide the information described in the
letter, and not as a request that it provide the informa-
tion, we note that any ambiguity as to the purpose of
the letter was resolved when the Union sent an iden-
tical letter on January 11.7 Thus, at least as of January
11, Respondent knew or should have known that the
Union was requesting information. The judge found,
and we agree, that there was a statutory obligation to
furnish this information. Accordingly, the Respond-
ent’s failure to furnish to the Union the requested in-
formation as outlined in its letter of January 11, 1991,
violated Section 8(a)(5) and (1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, T.L.C.
St. Petersburg, Inc., St. Petersburg, Florida, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Make whole unit employees for any loss they
may have incurred as a result of the unilateral imple-
mentation of a new benefits package, in the manner set
forth in footnote 2 of this decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
1115 Nursing Home and Hospital Employees Union-
Florida, Division of 1115 Joint Board as the exclusive
bargaining representative of all the employees in the
bargaining unit described below.
WE WILL NOT make unilateral changes in your
wages, hours, or working conditions, and WE WILL NOT
bypass the Union and deal directly with you on such
matters, including soliciting you to participate in a
company resolution committee.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL notify the Union in writing that: (1) we
now rescind our December 27, 1990 withdrawal of
recognition from the Union; (2) we now recognize the
Union as the exclusive bargaining representative of the
employees in the bargaining unit; (3) we immediately
will furnish the information the Union requested by its
letters of August 30, 1990, and January 11, 1991; (4)
the Union’s physical access to TLC’s St. Petersburg
nursing home is restored for the purposes enumerated
in article 5 of the collective-bargaining agreement
which expired December 31, 1990; (5) at the Union’s
written request, we will rescind all or any part of the
benefits package which TLC, effective January 1,
1991, unilaterally implemented; and (6) at the Union’s
request, we will meet and bargain.
WE WILL rescind our December 27, 1990 with-
drawal of recognition from the Union.
WE WILL immediately furnish to the Union the in-
formation it requested by its letters of August 30,
1990, and January 11, 1991.
WE WILL restore to the Union physical access to our
St. Petersburg nursing home for the purposes enumer-
ated in article 5 of the collective-bargaining agreement
which expired December 31, 1990.
WE WILL, at the Union’s request, rescind all or any
part of the benefits package which TLC, effective Jan-
uary 1, 1991, unilaterally implemented, and WE WILL
make employees whole, with interest, for any losses
they may have incurred as a result of our unlawful im-
plementation.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All employees, including porters, maids, laundry
workers, nurses aides and orderlies, gardeners,
607T.L.C. ST. PETERSBURG
1 Complaint par. 19 actually alleges that by these acts ‘‘Respond-
ent has failed and refused . . . to bargain . . . in good faith . . .
within the meaning of Section 8(a)(1) and (5) of the Act.’’ There
are no independent 8(a)(1) allegations and there is no conclusory
paragraph that TLC has interfered with, restrained, or coerced em-
ployees within the meaning of Sec. 8(a)(1) of the Act. Hence, the
8(a)(1) is derivative only, as in Sec. 8(a)(5) and (1).
2 The General Counsel attached a proposed order and a proposed
notice to the Government’s brief.
3 References to the single-volume transcript of testimony are by
volume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s, R. Exh. for Respondent TLC’s, and Jt. Exh. for the joint
exhibits. Charging Party 1115 offered no exhibits.
dishwashers and kitchen helpers, ward clerks, and
maintenance employees employed at TLC’s St.
Petersburg, Florida facility; but excluding all reg-
istered nurses, licensed practical nurses, office
staff, physical therapists, watchmen, supervisors,
and guards as defined in the Act.
T.L.C. ST. PETERSBURG, INC.
Evelyn M. Korschgen, Esq. and Michael B. Frost, Esq., for
the General Counsel.
Jeffrey L. Braff, Esq. (Cohen, Shapiro, Polisher, Shiekman
and Cohen), of Philadelphia, Pennsylvania, for TLC.
Stuart A. Weinberger, Esq. (Richard M. Greenspan, P.C.), of
White Plains, New York, for the Charging Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. As its col-
lective-bargaining agreement with Union 1115 was about to
expire, TLC withdrew recognition from the Union. Finding
that the employer, TLC, did not carry its burden of rebutting
the Union’s presumption of majority status, I further find that
TLC violated Section 8(a)(5) of the Act on December 27,
1990, when it withdrew recognition from Union 1115 and
thereafter, effective January 1, 1991, unilaterally changed
benefits and otherwise refused to recognize and bargain with
the Union. I order TLC to recognize and to bargain with
Union 1115 and, if the Union so requests, to rescind the uni-
lateral changes in benefits.
I presided at the trial of this case in Tampa, Florida, on
August 21, 1991, pursuant to the March 18, 1991 complaint
and notice of hearing (complaint) issued by the General
Counsel of the National Labor Relations Board through the
Regional Director for Region 12 of the Board. The complaint
is based on a charge filed January 10, 1991 (and later
amended) by 1115 Nursing Home and Hospital Employees
Union—Florida, Division of 1115 Joint Board (Union, 1115,
or Charging Party) against T.L.C. St. Petersburg, Inc. (TLC,
Company, or Respondent). All dates are for 1990 unless oth-
erwise indicated.
The General Counsel alleges in the complaint that TLC
violated Section 8(a)(5) of the Act by refusing, since about
August 30, 1990, to furnish information requested by the
Union; withdrawing recognition from the Union about De-
cember 27 and thereafter failing to bargain with the Union;
unilaterally implementing a benefit package about January 1,
1991; and about January 7, 1991, bypassing the Union, deal-
ing directly with unit employees, and refusing the Union ac-
cess to TLC’s facility in St. Petersburg, Florida.1
By its answer TLC admits certain factual matters but de-
nies violating the Act.
On the entire record, including my observation of the de-
meanor of the single witness, and after considering the briefs
filed by the General Counsel,2 the Union, and TLC, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Company (Respondent TLC) a Florida corporation,
operates a nursing home in St. Petersburg, Florida, where it
provides in-patient medical and professional care services for
geriatric patients. During the past 12 months, The Company
has derived gross revenue of at least $100,000. In these 12
months the Company has purchased goods worth $5000 or
more direct from points outside Florida. I find that Respond-
ent TLC is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
TLC admits, and I find, that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Case Presentations
Calling no witnesses, the General Counsel presented the
Government’s case-in-chief by way of the pleadings, joint
exhibits, a stipulation containing 11 numbered fact statements
(G.C. Exh. 2), and then rested. Charging Party 1115 also
rested. (1:20.) After an opening statement, Respondent TLC
called the only witness, Gerard M. J. Beaudoin, TLC’s presi-
dent since February 1990, and rested. (1:28, 186.)3
B. TLC Withdraws Recognition December 27, 1990
1. Allegations
Complaint paragraph 13 (as slightly modified at the hear-
ing, 1:25) alleges that TLC withdrew recognition from the
Union on December 27, and complaint paragraph 14 (as
amended at the hearing, 1:26) alleges that since January 1,
1991, TLC has failed and refused to recognize and bargain
with the Union. Paragraph 19 alleges that the conduct vio-
lates Section 8(a)(5) and (1) of the Act. Admitting the facts,
TLC denies violating the Act.
2. The recognized bargaining unit
As reflected in the stipulated facts, for about 5 years be-
fore mid-October 1988 the Union had been recognized by
TLC’s predecessor, Wedgewood Health Care (WHC), as the
exclusive bargaining representative for employees in the bar-
gaining unit at the St. Petersburg, Florida nursing home.
WHC had recognized the Union in a series of collective-bar-
gaining agreements, with the most recent collective-bargain-
ing agreement effective by its terms for the period January
1, 1987, through December 31, 1990. The recognized bar-
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gaining unit, which the parties have stipulated as being ap-
propriate, is described as:
All employees, including porters, maids, laundry work-
ers, nurses aides and orderlies, gardeners, dishwashers
and kitchen helpers, ward clerks, and maintenance em-
ployees employed at TLC’s St. Petersburg, Florida fa-
cility; but excluding allregistered nurses, licensed prac-
tical nurses, office staff, physical therapists, watchmen,
supervisors, and guards as defined in the Act.
Purchasing WHC’s St. Petersburg nursing home on Octo-
ber 12, 1988, and thereafter operating it basically unchanged
as WHC’s successor, TLC also adopted the terms of the ex-
isting collective-bargaining agreement. On December 13,
1990, TLC and Union 1115 began negotiations for a renewal
contract of the collective-bargaining agreement set to expire
December 31.
3. TLC withdraws recognition
Beaudoin testified that on December 26 two employees,
Ed Gonzalez and Ruthie Richardson, gave him a petition (R.
Exh. 12) containing 44 signatures. (1:93-94, 117, 151-152.)
The petition bears the caption:
WE, THE EMPLOYEES AT T.L.C. WISH NO LONGER TO
HAVE THE LOCAL UNION 1115 REPRESENT US AT T.L.C.
ST. PETERSBURG.
Believing the 44 signatures constituted a majority of the
bargaining unit, Beaudoin telephoned the Union, asking for
Secretary-Treasurer Tannenbaum. When Tannenbaum re-
turned Beaudoin’s call the next day, December 27, Beaudoin
informed him of the petition and the number of signatures,
read the caption to him, and advised Tannenbaum that TLC
as of that time was withdrawing recognition from the Union
and ceasing contract negotiations. (1:117-118, 151-153.) The
parties have stipulated that on December 27 TLC withdrew
its recognition of the Union. (G.C. Exh. 2 at 9.) The parties
further stipulated that when recognition was withdrawn, the
unit consisted of 82 employees. (1:14-16, 172-174; Jt. Exh.
5.) Thus, a majority of the unit would be 42.
Beaudoin testified that when he spoke with the Union’s
Tannenbaum on December 27 he had in mind four factors
to support his withdrawal of recognition: (1) the petition, (2)
oral statements by employees as reported by Brenda Adams
and Ruthie Richardson, (3) checkoff register, and (4) written
resignations. (1:118, 147, 153.) Based on all these factors
(discussed separately, below), Beaudoin thought that 60 to 70
unit employees no longer wished to be represented by the
Union. (1:152.) The General Counsel and the Union contend
that the actual number is short of the necessary 42.
4. Applicable law
At the expiration of a collective-bargaining agreement, the
union enjoys a rebuttable presumption of majority status.
NLRB v. Curtin Matheson Scientific, 110 S.Ct. 1542 (1990);
NLRB v. Imperial House Condominium, 831 F.2d 999 (11th
Cir. 1987); Worldwide Dectective Bureau, 296 NLRB 148
(1989); Century Papers, 284 NLRB 1151, 1157 (1987). To
rebut the presumption and lawfully withdraw recognition of
the union, the employer must establish that one (or both) of
two conditions existed on the date recognition is withdrawn:
(1) the union did not in fact enjoy majority support, or, the
more usual option, (2) the withdrawal of recognition and the
accompanying refusal to bargain were based on a good-faith
and reasonably grounded doubt—demonstrated by objective
factors—of the union’s majority status. Curtin Matheson,
supra; Burger Pits, 273 NLRB 1001 (1984); Master Slack
Corp., 271 NLRB 78, 84 (1984). Moreover, the atmosphere
must be free of any unfair labor practices having a meaning-
ful impact in bringing about the employees’ repudiation of
the union. Master Slack.
The Fifth Circuit views the employer’s burden a ‘‘heavy’’
one to be discharged with ‘‘clear and convincing’’ evidence.
United Supermarkets v. NLRB, 862 F.2d 549 (5th Cir. 1989).
Fifth Circuit decisions before the September 30, 1981 circuit
split bind the Eleventh Circuit. Bickerstaff Clay Products v.
NLRB, 871 F.2d 980 fn. 8 (11th Cir. 1989). The Fifth Cir-
cuit’s ‘‘clear and convincing’’ standard predates creation of
the Eleventh Circuit. See, for example, J. Ray McDermott &
Co. v. NLRB, 571 F.2d 850, 859 (5th Cir. 1978) (‘‘con-
vincing evidence’’). Even if the Eleventh Circuit applies that
standard, the Board does not, Bolton-Emerson, 293 NLRB
1124, 1127 (1989), and I am bound to apply Board law.
Texas Petrochemicals Corp., 296 NLRB 1057 (1989), re-
manded on other point 923 F.2d 398 (5th Cir. 1991).
Evidence of employee rejection of the union must come
from the employees themselves, and not from the employer
on their behalf. Montgomery Ward & Co., 210 NLRB 717
(1974). This does not mean that at trial the employer is re-
quired to call the employees as witnesses and elicit their tes-
timony before an administrative law judge. An employer may
rely on quoted comments of the employees and not on self-
serving general assertions by the employer that in its opinion
the employees do not support the union. Sofco, 268 NLRB
159, 160 fn. 10 (1983). Although the employer may prove
the employee statements through the supervisor or other em-
ployer representative who heard them, testimony of super-
visors quoting reports by employees on third-party employee
comments is hearsay which the Board disregards. Manna Pro
Partners, 304 NLRB 782 (1991); Sofco, id. This result
doubtlessly obtains because any such hearsay would not be
subject to testing by cross-examination.
One area of difference is that of the relevance of union
membership, membership resignations, numbers of employ-
ees on dues-checkoff, and numbers of revocations of dues-
checkoff authorizations. As cited in TLC’s brief at 22-23, the
Sixth Circuit views this matter—particularly a rapid de-
cline—as being a relevant factor to be weighed in the overall
assessment of objective considerations. Landmark Inter-
national Trucks v. NLRB, 699 F.2d 815 (6th Cir. 1983);
Thomas Industries v. NLRB, 687 F.2d 863 (6th Cir. 1982).
The Eleventh Circuit, where this case arises, also weighs this
factor. Bickerstaff Clay Products v. NLRB, 871 F.2d 980
(11th Cir. 1989). However, under Board law this factor is ir-
relevant because it does not equate to a repudiation of rep-
resentation by the incumbent union. Bolton-Emerson, 293
NLRB 1124, 1127 (1989); Colonna’s Shipyard, 293 NLRB
136, 139 (1989); Stratford Visiting Nurses, 264 NLRB 1026
(1982).
Especially is that so in a right-to-work state. Colonna’s;
Imperial House Condominium, 279 NLRB 1225, 1237
(1986). Although the Union asserts that Florida is a right-to-
609T.L.C. ST. PETERSBURG
work state (Br. at 16), no party paused long enough to offer
evidence of that fact or to cite statute or Florida state case
on the point. Even so, in Imperial House, cited by the Union,
Judge Howard Grossman finds Florida to be a right-to-work
state. Imperial House, id. at fn. 21. In the absence of evi-
dence that Florida has repealed its law, the presumption is
that the law’s existence remains. Paperworkers v. Inter-
national Paper Co., 920 F.2d 852 fn. 7 (11th Cir. 1991).
Determining whether an employer entertains a good-faith
doubt of a union’s majority status is a question of fact.
Bickerstaff, supra. I turn now to summarize the facts per-
taining to the four factors President Gerard Beaudoin asserts
that he relied on when, on December 27, he withdrew rec-
ognition from the Union.
5. TLC’s withdrawal factors
a. The petition
The petition consists of three separate pages, each bearing
the caption which I quoted earlier. Perhaps because the pages
were circulated separately, the 44 signatures include several
duplicates, names of employees no longer in the unit on De-
cember 27, and 1 supervisor. Thus, all parties agree, and I
find, that only 30 of the 44 names are to be counted as ex-
pressing a desire that Union 1115 not represent them. (G.C.
Br. at 4, 11-12; U. Br. at 5, 11; TLC Br. at 14, 18.)
b. Employee statements
Beaudoin testified that within the 4 to 6 weeks before De-
cember 27 Ruthie Richardson, a unit employee circulating
the petition, told him that she did not want the Union rep-
resenting her and that four other unit employees (James
Boyd, Mary Bristol, Carol Jackson, and Gloria Robinson) did
not want the Union at TLC but declined to sign the petition
because they first wanted to know what promises Beaudoin
would make to them and because they were concerned the
Union would retaliate against them. On advice of counsel,
Beaudoin did not approach the four to corroborate Richard-
son’s report. (1:96, 112-115, 139-140; G.C. Exh. 7.)
Richardson’s reported description of the comments of the
four other employees demonstrates why the inability to cross
examine Richardson, the person who allegedly spoke with
the four employees (apparently as she circulated the petition),
renders such hearsay reports worthless. At the trial I over-
ruled hearsay objections by the General Counsel and the
Union, ruling that I would be guided in my decision by the
case law. (1:92, 102, 113-114.) Now sustaining the objec-
tions, I attach no weight to the hearsay reports. Manna Pro
Partners, supra. Richardson’s name is among the 30 valid
ones on the petition, I do not count her name again.
A similar report was made to Beaudoin by Brenda Adams,
TLC’s director of housekeeping, a member of management
who reports directly to Beaudoin. (1:116, 176.) Between De-
cember 13 and 25, Beaudoin testified, Adams reported that
all eight employees under her supervision told her that they
wanted out of the Union, did not want to be represented by
the Union, but were afraid to sign the petition because of
what the Union might do. (1:101-102, 111-112, 133-134;
G.C. Exh. 7.) The eight employees named by Adams to
Beaudoin are: Linda Avant, Willie Belle Dixon, Frances
Pilley, Rochelle Watson, Jane Weeks, Vicki Wilcox, Ella
Wright, and Woodrow Wynn.
As Pilley signed the petition (notwithstanding the reported
fears), it raises a question of just how reliable the report is
from Supervisor Adams. Moreover, as Adams did not testify
she could not be cross examined respecting the cir-
cumstances under which her eight employees expressed
themselves to her. That is, did each one volunteer this ex-
pression to Adams, or did Adams, the person holding power
over their employment, approach her employees and solicit
these expressions?
In Sofco, 268 NLRB 159, 160, 165 (1983), the plant man-
ager described comments and conversations which he person-
ally heard or had. He could be, and was, cross examined on
his descriptions. Thus, it appears that, under Board law, the
supervisor who heard the employee comments or had the
conversations with unit employees must testify so that he or
she may be cross examined. The ability to cross-examine at
least the supervisor is absolutely vital since the employer is
not required to call the unit employees themselves. Accord-
ingly, now sustaining the objections of the General Counsel
and the Union, I attach no weight to Beaudoin’s testimony
about the reports of Supervisor Brenda Adams, and I shall
not count the seven names she listed in addition to Frances
Pilley who did sign the petition.
c. Checkoff register
Beaudoin testified that on December 27 he thought there
were only about 25 unit employees who had authorized their
union dues to be deducted by checkoff. (1:91, 175.) There
actually were 32. (G.C. Exhs. 3, 4; 1:142-147, 175, 182-183.)
However, under Board law the number of employees who
have authorized their union dues to be checked off is irrele-
vant because no one knows how many employees who favor
union representation do not become or remain union mem-
bers authorizing dues checkoff. See the cases I cited in the
discussion of applicable law, plus Hotel & Restaurant Em-
ployees, 213 NLRB 651, 652 (1974). Particularly is this true,
as here, in a right-to-work state such as Florida. Accordingly,
I attach no weight to this factor.
d. Written resignations
Beaudoin names 10 employees who, as of December 27,
had resigned their union membership. (1:148-149.) Several of
the names are in dispute on the basis that the Union had no-
tified TLC that the resignations were untimely, under the
Union’s constitution and bylaws, or simply stale because
signed in 1989, with one dated in 1988. There is no dispute
that 3 of the 10, Michelle Brooks, Tyrone Brown, and
Alphonso Collins, subsequently (and well before December
27) had revoked their resignations. (G.C. Exh. 5; 1:158-159.)
That Beaudoin counted these three as late as the trial detracts
from his efforts to show a good-faith doubt.
Discounting the three who revoked leaves seven. Even if
all 7 were counted they would bring TLC’s total only to 37,
well short of the 42 needed. I therefore find it unnecessary
to analyze the seven resignations any further.
6. Conclusions
Having found that no more than 37 employees from a unit
of 82 can be counted, as of December 27, in the category
of those repudiating representation by Union 1115, it is clear,
and I find, that on December 27, 1990, the Union continued
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to enjoy a presumption of majority support among the em-
ployees of the bargaining unit. Moreover, TLC cannot other-
wise claim a good faith doubt here. The factors TLC relies
on either are legally irrelevant—such as hearsay reports and
less than a majority on dues checkoff—or else insufficient in
number to justify a good-faith finding.
Accordingly, as alleged in the General Counsel’s com-
plaint, I find that Respondent TLC violated Section 8(a)(5)
and (1) of the Act by (1) withdrawing recognition from the
Union on December 27, 1990, and (2) since January 1, 1991,
failing and refusing to recognize and bargain with the Union.
C. Other Refusal-to-Bargain Violations
1. Introduction
The complaint alleges four other acts or refusals to be vio-
lative of Section 8(a)(5) of the Act. My finding of continued
majority status, with no good-faith withdrawal of recognition
on December 27, essentially dictates findings of violations as
to these others. Indeed, TLC briefs only as to one of the
four, a request for information. That is the only allegation on
which a question is raised by TLC.
2. Bypassing the Union
As amended, the complaint alleges, the answer admits, and
I find that about January 7, 1991, TLC bypassed the Union
and dealt directly with unit employees ‘‘by soliciting em-
ployees to participate in a Company resolution committee.’’
I find that TLC violated Section 8(a)(5) and (1) by such con-
duct.
3. Denial of physical access
TLC admits that, as alleged in complaint paragraph 18,
since about January 7, 1991, it has failed and refused to
allow Union representatives physical access to the St. Peters-
burg nursing home. The collective-bargaining agreement pro-
vides for this access, and such a condition survives contract
expiration. Colonna’s Shipyard, 293 NLRB 136, 141 (1989).
By such conduct TLC, I find, has violated Section 8(a)(5)
and (1) of the Act.
4. Benefits package unilaterally implemented
TLC admits that on January 16, 1991, retroactive to Janu-
ary 1, it unilaterally implemented a benefit package affecting
rates of pay, wages, hours of employment, and other terms
and conditions of employment. By such admitted conduct
TLC, I find, violated Section 8(a)(5) and (1) of the Act, as
alleged.
5. Failure to furnish requested information
The stipulated facts (G.C. Exh. 2 at 6, 7) disclose that by
certified letters dated August 30, 1990 (Jt. Exh. 3), and Janu-
ary 11, 1991 (Jt. Exh. 4), the Union requested, and TLC has
failed to respond or furnish, the following data:
In accordance with our existing Collective Bar-
gaining Agreement which states, ‘‘The Employer shall
forthwith give the Union a list of regular employees
covered by this Agreement including categories, wages
and dates of employment and shall thereafter promptly
furnish the names, dates of employment, categories, and
wages of any new regular employees in the Collective
Bargaining Agreement.’’
Any questions please contact our office.
TLC took no action in response to the Union’s duplicated
letter, Beaudoin testified, because it is merely a ‘‘statement.’’
‘‘That’s why I read it and I just filed it away.’’ (1:119.) Con-
tending that its inaction, ‘‘except perhaps to laugh’’ (Br. at
28), was not unlawful because the letter is merely a declara-
tory statement requesting no action, TLC argues that no vio-
lation can be found.
Citing cases such as Keauhou Beach Hotel, 298 NLRB
702 (1990), the General Counsel argues that even if the
Union’s letter is ambiguous, TLC was obligated to request
a clarification. (Br. at 20.) In Keauhou Beach the Board
wrote:
It is well established that an employer may not simply
refuse to comply with an ambiguous and/or overbroad
information request, but must request clarification
and/or comply with the request to the extent it encom-
passes necessary and relevant information.
Whether drafted from arrogance, carelessness, or indiffer-
ence, the Union’s letter is less than a model of clarity. Nev-
ertheless, Beaudoin, I find, knew very well that the Union
was requesting the data described in the letter, and for unit
employees. (Consistent with the collective-bargaining agree-
ment, and common sense, the last three words of the re-
quested data should not refer to the collective-bargaining
agreement but should read ‘‘in the bargaining unit.’’ The
meaning is obvious to anyone acting in good faith, and a
clarification could have been requested.) The information is
necessary and relevant. Beaudoin’s ‘‘file and forget’’ attitude
reflects his overall lack of good faith. I therefore find that
TLC, as alleged, violated Section 8(a)(5) and (1) of the Act
by failing and refusing to supply the requested information
to the Union.
CONCLUSIONS OF LAW
1. Respondent TLC has failed to rebut the Union’s pre-
sumption of continuing majority status.
2. TLC has engaged in unfair labor practices within the
meaning of 29 U.S.C. § 158(a)(5) and (1) and 29 U.S.C.
152(6) and (7).
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, I shall order it to cease and desist,
to bargain on request with the Union and, if an under-
standing is reached, to embody the understanding in a signed
agreement. I also shall order TLC (1) to furnish the Union
the requested information, (2) to grant the Union physical ac-
cess to TLC’s St. Petersburg nursing home in accordance
with past practice and the provision of the expired collective-
bargaining agreement, and (3) on written request of the
Union, to rescind the benefit package, or any part, unilater-
ally implemented on the effective date of January 1, 1991.
611T.L.C. ST. PETERSBURG
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, T.L.C. St. Petersburg, Inc., St. Peters-
burg, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Withdrawing recognition of the Union as the exclusive
bargaining representative of all the employees in the bar-
gaining unit described below in paragraph 2(b).
(b) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the Union as the exclusive bargaining rep-
resentative of all the employees in the bargaining unit.
(c) Unilaterally implementing a benefits package affecting
terms and conditions of employment of employees in the bar-
gaining unit.
(d) Refusing to furnish the Union information that is rel-
evant and necessary to its role as the exclusive bargaining
representative of the employees in the bargaining unit.
(e) Bypassing the Union and dealing directly with unit em-
ployees by soliciting them to participate in a company reso-
lution committee.
(f) Denying union representatives physical access to the St.
Petersburg nursing home.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify, in writing, 1115 Nursing Home and Hospital
Employees Union—Florida, Division of 1115 Joint Board
that TLC rescinds its withdrawal of recognition from the
Union and that TLC recognizes the Union as the exclusive
bargaining representative of the employees in the bargaining
unit.
(b) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding in a
signed agreement:
All employees, including porters, maids, laundry work-
ers, nurses aides and orderlies, gardeners, dishwashers
and kitchen helpers, ward clerks, and maintenance em-
ployees employed at TLC’s St. Petersburg, Florida fa-
cility; but excluding all registered nurses, licensed prac-
tical nurses,office staff, physical therapists, watchmen,
supervisors, and guards as defined in the Act.
(c) Immediately furnish the Union with the information it
requested by the letters dated August 30, 1990, and January
11, 1991.
(d) Notify the Union in writing that TLC restores to the
Union physical access to TLC’s St. Petersburg nursing home
for the purposes enumerated in Article 5 of the collective-
bargaining agreement between the parties which expired De-
cember 31, 1990.
(e) At the Union’s request, rescind all or any part of the
benefits package unilaterally implemented effective January
1, 1991, at the St. Petersburg facility.
(f) Post at its St. Petersburg, Florida nursing home copies
of the attached notice marked ‘‘Appendix.’’5 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 12, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.