National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)
National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)
National Labor Relations Board v. Sanford Home For Adults, and Local 6, International Federation of Health Professionals, International Longshoremen's Association, Afl-Cio, 669 F.2d 35, 2d Cir. (1981)
2d 35
109 L.R.R.M. (BNA) 3007, 92 Lab.Cas. P 13,195
that the Home had coerced its employees into joining the Union to prevent
them from becoming members of a rival organization, Local 144, the charging
party. It also concluded, inter alia, that the Home and the Union had
inappropriately entered into a collective bargaining agreement when a majority
of the Home's employees had not signed valid membership cards and that the
Union had improperly attempted to enforce the agreement's union security
clause by demanding that two employees be discharged. The order required
respondents to desist from further violations of the Act and to reinstate and
make whole employees who were victims of their unlawful practices. The
Home was also ordered to withdraw recognition from the Union as the
collective bargaining representative of its service and maintenance employees.
2
Respondents argue that the Board improperly excluded two individuals from
the bargaining unit in determining that the Union did not command majority
support. One employee, Beverly Salmon, completed a tax form and union
membership card, but she did not commence work nor was she ever paid. The
other employee, Raymond Murcia, began his term of employment only four
days before and completed it one day after the Union's recognition demand
date. Although he was ostensibly hired as a kitchen helper, Murcia helped out
in the kitchen only on the first day of his employment. The bulk of his time was
spent organizing activities for the Union. Under the circumstances, the Board
did not err in concluding that Salmon and Murcia did not qualify as employees
in determining whether the Union had garnered majority support.
Respondents also claim that the Board erred in finding that Raul Alcides
Echeverri's membership card was invalid because he was coerced into signing.
At the hearing, the evidence showed that Harry Mayer, the Home's managing
partner and administrator, and his wife, the assistant administrator, had been
present at various times when Murcia solicited Echeverri to become a union
member. Mr. Mayer also told Echeverri that everyone had joined and that
anyone else who had not signed would be "thrown out." Mr. Mayer filled out
the card for Echeverri, who then signed it. This showing amply supported the
conclusion that Echeverri had been coerced into signing. Because exclusion of
the cards signed by Salmon, Murcia, and Echeverri resulted in less than
majority support for the Union, it is unnecessary to consider the Board's
broader finding that all votes cast for the Union were tainted by coercion.
Respondents also contend that the Administrative Law Judge (ALJ) should
have been disqualified because he engaged in ex parte communication with the
Board's general counsel. This contention must also be rejected. First,
respondents did not comply with section 102.37 of the Board's Rules and
Regulations, 29 C.F.R. 102.37 (1981), which requires the parties to file a
Finally, respondents argue that their right to due process was denied because
the Board had predetermined the outcome of the case when it decided to seek
an injunction under section 10(j) of the Act, 29 U.S.C. 160(j). This claim is
untenable. If it were accepted, the Board would preclude itself from fulfilling
its obligation to review and decide whether unfair labor practices have occurred
under section 10(c), 29 U.S.C. 160(c), by meeting its obligation to seek an
injunction under section 10(j). Such a result would be completely out of
keeping with congressional intent to delegate these duties to the Board. In
seeking an injunction under section 10(j), moreover, the Board does not decide
the ultimate merits of a labor dispute, but need show only that "there is
reasonable cause to believe that unfair labor practices have been committed."
See Seeler v. Trading Port, Inc., 517 F.2d 33, 36 (2d Cir. 1975).
This petition, originally heard on November 30, 1981, was decided by order
dated December 7, 1981. Such a summary disposition has no precedential value
under our Local Rule 0.23. Counsel for petitioner, however, has requested that
the December 7 order be published, and we have decided to repeat the
substance of our December 7 order in this per curiam opinion, which will be
published
**
Honorable William C. Conner, United States District Judge for the Southern
District of New York, sitting by designation