October 21, 1994
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 90-2047 

               NATIONAL LABOR RELATIONS BOARD,

                         Petitioner,

                              v.

                HOSPITAL SAN FRANCISCO, INC.,

                         Respondent.

                                         

          ON MOTION TO WITHDRAW RECOGNITION OF UNION

                                         

                            Before

                     Selya, Circuit Judge,
                                         
               Campbell, Senior Circuit Judge,
                                             
                  and Boudin, Circuit Judge.
                                           

                                         

William Wachter,  Assistant General Counsel,  and Dona A.  Nutini,
                                                                 
Trial Attorney, on memorandum for petitioner.
Tristan  Reyes-Gilestra  and  Fiddler,  Gonzalez  &amp;  Rodriguez  on
                                                              
memorandum for respondent.

                                         

                                         

     Per Curiam.   Respondent Hospital  San Francisco,  Inc.,
               

the operator of a hospital in Rio Piedras, Puerto Rico, seeks

permission to withdraw recognition from the Unidad Laboral de

Enfermeras(os)   y   Empleados   de   la   Salud--the   union

representing  a unit  of registered  nurses at  the hospital.

Based on  the undisputed evidence,  the motion is  denied for

the following reasons.1

                              I.

     A  brief recounting  of respondent's  bargaining history

with  the union is necessary  to place the  instant motion in

context.  That history includes, among other proceedings, two

decisions by the National  Labor Relations Board finding that

respondent  had  committed  unfair  labor  practices,  and  a

decision  by this  court adjudicating  it in  contempt.   The

background is as follows.  Following respondent's acquisition

of  the   hospital  in   December  1987,  the   union  sought

recognition  by the new owner.   Although the  union had been

representing  the nurses for some ten years up to that point,

respondent  refused, claiming  that  it was  not a  successor

employer and that the nurses were probationary employees.  On

December  13, 1988,  an  ALJ rejected  these allegations  and

ordered  respondent  to bargain  with  the  union; the  Board

adopted  this order  three months  later.   See 293  NLRB 171
                                               

                    

1.  Neither side has requested reference to a special master,
and we agree that disposition of the matter can be reached on
the basis of the papers presented.

("Hospital   I").     Respondent  recognized   and  commenced
              

bargaining with the union in the wake of the ALJ's decision.

     Such rapprochement, however, was short-lived.  In August

1989,  respondent  withdrew recognition  from  the union  and

filed  a decertification  petition, claiming  that  the union

lacked majority  support among  the nurses.   It subsequently

made unilateral changes in working conditions and declined to

furnish  the union  with  requested information.   The  union

again filed charges, and  an ALJ again found that  respondent

had committed  unfair labor practices.   This decision, dated

December  30, 1991, was adopted  by the Board  in April 1992.

See  307 NLRB 84 ("Hospital II").   Mincing no words, the ALJ
                              

found  that respondent  "never had an  intention to  reach an

agreement  with  the  Union,"  and that  its  "withdrawal  of

recognition  and the filing of the  RN petition were pretexts

and shams, the  real purpose  for which was  the delaying  of

collective bargaining and ultimately the ousting of the Union

from the Respondent's premises."   307 NLRB  at 87.  The  ALJ

similarly  concluded that  respondent's  questioning  of  the

union's  majority status  was "spurious."   Id..   Respondent
                                               

never sought review of Hospital II in this court.2 
                                  

     In  the  meantime,  prompted  by this  second  round  of

charges,  the Board  applied for  summary enforcement  of its

                    

2.  Respondent's  decertification  petition,  meanwhile,  was
dismissed by the Region because of the pendency of the unfair
labor practice charges.

                             -3-

order in Hospital  I.   In February  1991, over  respondent's
                    

objection,  this  court enforced  the  Board's  order on  the

ground that  there was  "no reasonable expectation"  that the

wrong  would not be repeated.   We subsequently  noted, in an

order  denying  reconsideration,  that  the  record contained

"sufficient  intimations ...  of  continued recalcitrance  by

respondent  concerning its duty to  bargain" so as to warrant

enforcement of the order.  

     In   July  1992,   the  Board   filed  a   petition  for

adjudication in civil contempt, alleging that respondent  had

violated the judgment  by unilaterally implementing  a change

in work  schedule and by  dealing directly with  employees in

connection therewith.  In a decision dated March 30, 1993, we

found respondent  in contempt.  While  acknowledging that its

conduct  there  was  "less   than  flagrant  in  nature,"  we

determined that  a  contempt adjudication  was  warranted  in

light of the hospital's  "history of intransigence toward the

union."      The   accompanying  purgation   order   directed

respondent,  inter alia,  to  recognize and  bargain in  good
                       

faith with the union.  It also provided:

     The Hospital shall not be heard to contend that the
     Union  lacks  the  support  of a  majority  of  the
     bargaining unit at any time within one year of  the
     date  of   this  adjudication.     Thereafter,  the
     Hospital  shall not  withdraw recognition  from the
     Union without the prior approval of this Court.

Fifteen months  later, respondent  filed the  instant request

for  approval to  withdraw recognition--asserting  once again

                             -4-

that the  union's majority support was  subject to reasonable

question.   In the alternative, based on the same allegation,

it asks that an election be ordered.  The Board has submitted

a memorandum opposing both requests. 

                             II.

     The  governing standards are not in  dispute.3  In order

to overcome the rebuttable presumption of continuing majority

status, respondent must demonstrate  "either (1) the union in

fact no longer enjoy[s] majority support, or (2) the employer

ha[s]  a reasonable  'good faith'  doubt, based  on objective

considerations, of  the union's  majority support."   NLRB v.
                                                          

LaVerdiere's Enterprises,  933 F.2d  1045, 1051-52 (1st  Cir.
                        

1991);  accord, e.g.,  NLRB  v.  Curtin Matheson  Scientific,
                                                             

Inc., 494 U.S. 775, 778 (1990); Bolton-Emerson, Inc. v. NLRB,
                                                            

899 F.2d 104,  106 (1st Cir.  1990).  An attempt  to withdraw

recognition  based on such a  good faith doubt  "must be both

reasonable  and supported by  sufficient objective criteria."
               

Destileria  Serrales, Inc. v. NLRB, 882 F.2d 19, 21 (1st Cir.
                                  

1989)  (emphasis in  original); accord,  e.g., Soule  Glass &amp;
                                                             

Glazing Co. v. NLRB, 652 F.2d 1055, 1110 (1st Cir. 1991).
                   

     In support of its request, respondent cites a panoply of

factors   that   are  said   to  demonstrate   both  employee

                    

3.  While the  cited  standards derive  from cases  involving
unfair labor  practice proceedings,  both parties  agree that
they   are   equally   applicable   to   the   instant   case
notwithstanding its different procedural posture.  

                             -5-

repudiation of the union and inactivity  on the union's part.

These can be summarized  as follows: (1) employee expressions

of discontent  with the  union; (2)  the infrequency  of, and

poor attendance  at, union meetings; (3)  the nurses' failure

to  pay  union dues;  (4)  the  filing by  an  employee of  a

decertification petition in March 1992; (5) a letter from the

union president  decrying the  lack of employee  support; (6)

the  union's  failure to  file  grievances;  (7) its  alleged

failure  to appoint  a  shop  steward;  (8)  the  absence  of

employees on the union  bargaining committee; (9) the union's

overall inactivity;  and (10) the high  turnover in employees

since 1987.

     Before addressing these various factors, we take note of

three general considerations militating against  allowance of

the instant motion.  First, little of respondent's supporting

evidence  is of recent vintage:  of the five sworn statements

attached to the  motion, three  were prepared in  1989 and  a

fourth in 1990.4  This is significant.  See, e.g., Manna  Pro
                                                             

Partners,  L.P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir. 1993)
                       

(employee sentiments voiced in 1984 "were too remote in time"

to support  a reasonable doubt  of majority status  in 1990).

Second,  the  Board  considered  much  of  such  evidence  in

Hospital II in the course  of conducting an inquiry identical
           

                    

4.  Indeed, the three 1989 affidavits were drafted in support
of respondent's August 1989 decertification petition.

                             -6-

to  that  involved here--i.e.,  in finding  that respondent's

1989 challenge to the  union's majority status was unfounded.

This, too, is significant.   Cf. NLRB v. Donna-Lee Sportswear
                                                             

Co.,  836   F.2d  31,  33-34  (1st   Cir.  1987)  (discussing
   

principles  of  issue  preclusion).     Finally,  as   noted,

respondent was  engaged in unfair labor  practices throughout

much of the relevant period.  Indeed, the ALJ in Hospital  II
                                                             

specifically found that "union defection  [was] easily traced

to  the Respondent's  commission of  unfair practices."   307

NLRB  at 87.  An  employer, of course,  cannot assert a good-

faith doubt  as to  a union's majority  support where  unfair

labor practices have caused  employee defections.  See, e.g.,
                                                            

Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 687 (1944).
                               

     Respondent  thus comes  close  to  having three  strikes

against it before even  stepping to the plate.   The specific

factors  it cites, moreover, do  little to advance its cause.

Indeed,   many  require   little   discussion.     The  union

president's   letter,  for  example,  is  irrelevant;  it  is

apparent from the  context that  he was  there lamenting  the

nurses'  reluctance  to  testify in  the  agency  hearings--a

reluctance that is  explicable in light of  the atmosphere of

"fear" described  by the  ALJ.   See  307 NLRB  at  87.   The
                                    

reference  to  the  union's  failure to  file  grievances  is

disingenuous;  as the  ALJ  noted, respondent  had taken  the

position  that  it  would  not  discuss  grievances  until  a

                             -7-

bargaining agreement was reached.  Id. at 86 &amp; nn.  8-9.  The
                                      

allegation  of  general  union  inactivity  is frivolous;  it

suffices to  note in  this regard  that respondent  has twice

been brought up on charges by the union.  

     The  alleged expressions  of employee  disaffection with

the union are worthy of little weight.  They are all at least

five years old, they  were deemed unpersuasive by the  ALJ in

Hospital  II, see  id. at  86, and  they fall  well  short of
                      

reflecting  the views of "at least 50 percent" of the nursing

workforce, LaVerdiere's  Enterprises, 933 F.2d at  1053.5  In
                                    

turn, the alleged absence  of a shop steward, the  absence of

employees on the bargaining committee, and the infrequency of

(and  alleged poor  attendance at)  union meetings  were each

considered by  the ALJ.6   Moreover,  the union  now explains

that a steward  was in place for part of  1991 and 1992, that

it   purposefully  excluded  employees  from  the  bargaining

committee to prevent reprisals,  and that it has communicated

                    

5.  The  June 1994  affidavit  of  Rivera Quintero--the  only
current affidavit provided--states generally that  the nurses
"totally  disregard"  the union,  but recounts  no individual
expressions  of anti-union  sentiment.   Indeed, the  lack of
updated  evidence  in this  regard  is  telling, inasmuch  as
"[e]xpression of  employee sentiment  against a union  is the
most persuasive evidence supporting an employer's good  faith
doubt  of  the union's  lack of  majority  status."   NLRB v.
                                                          
Albany Steel, Inc., 17 F.3d 564, 570 (2d Cir. 1994).
                  

6.  The  Rivera Quintero  affidavit refers  to a  more recent
meeting, the date of  which is unspecified, which  is alleged
to have  gone entirely unattended.   The  lack of  supporting
detail, however, leaves it unclear whether such a meeting was
even held. 

                             -8-

with its  members through mailings and  leaflets, rather than

through  meetings  at  the  hospital, for  the  same  reason.

Respondent has offered no rebuttal of these explanations.

     The remaining  three  factors  are  likewise  of  little

avail.  The employee's decertification petition, we are told,

was dismissed by the Region because of the pendency of unfair

labor practice proceedings.   In Asseo  v. Centro Medico  del
                                                             

Turabo,  900 F.2d  445 (1st  Cir. 1990),  we held  in similar
      

circumstances that  such  a petition  "do[es] not  constitute

sufficient  objective evidence  to  deny recognition  to  the

certified  bargaining agent."   Id.  at  453.   Moreover, the
                                   

petition there had  been signed  by 35 of  the 79  employees;

here,  while   the  petition  contained  a   checked-off  box

indicating it was supported by 30%  or more of the nurses, it

was only signed by a single employee.

     Regarding the issue of union dues, respondent points out

that no  nurse  has executed  an authorization  to have  dues

deducted  from his  or  her  paycheck.    Yet  this  evidence

manifests no  recent diminution  in employee support  for the

union.   Compare, e.g., NLRB  v. Albany Steel,  Inc., 17 F.3d
                                                    

564,  570  (2d  Cir.  1994)  ("where  the  union  has  sought

financial  support from  the  members and  received only  one

reply which was resoundingly negative, it is not unreasonable

for an  employer to  question the union's  majority status").

Indeed, respondent acknowledges  that it "has  never deducted
                                                    

                             -9-

Union dues  from the  graduate nurses," Vazquez  Affid., Exh.

10A,   8 (emphasis added)--quite possibly for the reason that

an  employer  has no  duty  to  do so  in  the  absence of  a

collective bargaining  agreement.  See, e.g.,  Robbins Door &amp;
                                                             

Sash Co., 260 NLRB 659 (1982).7 
        

     Finally,  as   to  the  issue  of   employee  turnover,8

whatever  weight  this  factor might  ordinarily  possess  is

diminished  where,  as  here,  the  employer  has  unlawfully

avoided its bargaining obligation during most of the relevant

period.   See, e.g., Fall  River Dyeing &amp;  Finishing Corp. v.
                                                          

NLRB, 482 U.S. 27,  51 n.18 (1987); LaVerdiere's Enterprises,
                                                            

933 F.2d at 1055  ("If delays are occasioned by  an obstinate

employer, he  may not benefit from his  own wrong.") (quoting

Texas Petrochemicals  Corp. v. NLRB,  923 F.2d 398,  404 (5th
                                   

Cir. 1991)).  

                             III.

     For  these  reasons,  we   perceive  no  basis  for  the

withdrawal of  recognition from the  union.  We  are likewise

unpersuaded  that  an  election   among  unit  employees   is

warranted.   The two cases on which respondent relies in this

                    

7.  The union, in any event,  now explains that its  practice
is to collect dues only after a bargaining agreement has been
signed.     Respondent  has  offered  no   response  to  this
assertion.

8.  Respondent  states that, of the 76  nurses working at the
hospital  in June 1994, only  eight were so  employed when it
acquired the hospital back in December 1987.

                             -10-

regard   are  plainly   distinguishable.     In  LaVerdiere's
                                                             

Enterprises,  for example,  we  noted that  "there existed  a
           

clear showing  of substantial employee  dissatisfaction [with

the union]  unprovoked by the employer  before the employer's
                                              

less-than-egregious misconduct."   933 F.2d at 1055 (emphasis

in  original).   On  all three  counts--i.e.,  the extent  of

employee   discontent;  the  lack  of  employer  contribution

thereto; the degree of employer  misconduct--the instant case

differs.   Similarly, in  Albany Steel, various  factors were
                                      

involved  of a  kind,  or to  a  degree, not  present  in the

instant case--e.g.,  the absence of anti-union  animus on the
                  

employer's part;  the employees'  repudiation of an  explicit

union  request  for  financial support;  the  union's  recent

failure to  file any grievances, after  having regularly done

so  in   the  past;   and  timely  expressions   of  employee

disaffection.  See 17 F.3d at 569-71.
                  

                             IV.

     Nearly  seven  years  after  gaining  ownership  of  the

hospital, respondent has yet to reach a collective bargaining

agreement with its registered nursing staff.  As has now been

explicated on  several occasions, both  by this court  and by

the Board, this state  of affairs is principally attributable

to respondent's  intransigence.   Rather  than file  baseless

motions premised  on stale evidence  and regurgitated issues,

                             -11-

respondent would  be better served, we  suggest, by attending

to its bargaining obligations in a forthright fashion.

     The motion  requesting approval to  withdraw recognition
                                                             

of the union is denied.
                       

                             -12-
