Parkwood Developmental Center

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 347 NLRB No. 95 974 Parkwood Developmental Center, Inc. and United Food and Commercial Workers International Union Local 1996, CLC.1 Case 12–CA–22866 August 22, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW On February 10, 2004, Administrative Law Judge Par- gen Robertson issued the attached decision. The General Counsel, the Charging Party, and the Respondent filed exceptions and supporting briefs. The General Counsel and the Respondent filed answering 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 decided to affirm the judge’s rulings, findings,2 and conclusions3 except as specifically set forth below and to adopt the recommended Order as modified and set forth in full below. Background The Respondent operates a developmental and training center for developmentally disabled patients. The Re- spondent and the Union were parties to a collective- bargaining agreement that was effective from March 9, 2001, through March 8, 2003. 1 We have amended the caption to reflect the disaffiliation of the United Food and Commercial Workers International Union from the AFL–CIO effective July 29, 2005. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We agree with the judge, for the reasons stated in his decision, that the Respondent violated Sec. 8(a)(1) when Supervisor Johnny Jones told employee Cornelius Graham that because of the Union, employees were not receiving wage increases. However, we have corrected the judge’s decision to reflect the fact that there is no basis for finding an additional similar violation, given that the judge did not credit Gra- ham’s testimony that Administrator Charles Templeton made a similar statement. We agree with the judge, for the reasons stated in his decision, that the Respondent violated Sec. 8(a)(1) when Templeton told employee Pamela Kirkland that employees could not talk about the Union during company time. We also agree with the judge, for the reasons stated in his decision, that the Respondent acted unlawfully by unilaterally changing unit employees’ health insurance benefits to require employees to pay a portion of individual coverage premiums. (The judge inadvertently concluded that the Respondent’s conduct violated Sec. 8(a)(3) and (1) instead of Sec. 8(a)(5) and (1). We have corrected the judge’s deci- sion.) On December 2, 2002, the Respondent received a petition from a majority of the bargaining unit employ- ees stating that they no longer wished to be represented by the Union.4 On that same date, the Respondent sent the Union a letter advising that the Respondent had received objective evidence from a majority of em- ployees that they no longer wished to be represented by the Union and that the Respondent was withdraw- ing recognition effective on the expiration date of the existing collective-bargaining agreement. The Re- spondent informed the Union that it would continue to apply the collective-bargaining agreement until its expiration, but that it would not enter into any negotia- tions for a successor agreement. Sometime later, the Union gathered signatures on a petition that read as follows: I authorize the United Food and Commercial Work- ers Union Local 1996 to act as my bargaining repre- sentative and to represent me concerning my wages, hours and working conditions with my employer Parkwood Developmental Center. I revoke, rescind and cancel any previous statements that I might have made to the contrary.5 As a further demonstration that a majority of unit em- ployees sought continued representation, the Union col- lected authorization cards from employees. The Union delivered its evidence of majority support to the Respon- dent on March 7, 2003—the day before the expiration of the collective-bargaining agreement. That same day, the Respondent sent a letter to the Union indicating that it would not continue to recognize the Union. The Respon- dent has not recognized the Union since March 8, 2003. Analysis Withdrawal of Recognition In evaluating whether the Respondent acted unlaw- fully in withdrawing recognition from the Union on March 8, 2003, we apply the standard established in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), under which the Respondent must show that the Union had actually lost its majority status when the 4 The parties stipulated that the signatures appearing on the peti- tion are authentic and that the signatures represent a majority of the employees in the bargaining unit as of that date. Contrary to the judge’s decision, the General Counsel did not ar- gue at the hearing or in its brief that the petition had been tainted by the Respondent’s 8(a)(1) violations. 5 The parties stipulated that the signatures appearing on the peti- tion are authentic and that the signatures represent a majority of the employees in the bargaining unit as of that date. PARKWOOD DEVELOPMENTAL CENTER 975 Respondent withdrew recognition.6 See Port Printing Ad & Specialties, 344 NLRB 354 (2005), enfd. sub nom. mem. NLRB v. Seaport Printing Ad Specialties, Inc., 192 Fed.Appx. 290 (5th Cir. 2006). Contrary to the judge, we find that the Respondent unlawfully withdrew recog- nition from the Union.7 Under Levitz, an “employer may rebut the continuing presumption of an incumbent union’s majority status, and unilaterally withdraw recognition, only on a showing that the union has, in fact, lost the support of a majority of the employees in the bargaining unit.” 333 NLRB at 725. As the Levitz Board explained: [A]n employer with objective evidence that the union has lost majority support—for example, a petition signed by a majority of the employees in the bargaining unit—withdraws recognition at its peril. If the union contests the withdrawal of recognition in an unfair la- bor practice proceeding, the employer will have to prove by a preponderance of the evidence that the un- ion had, in fact, lost majority support at the time the employer withdrew recognition. [Id., emphasis added.] Applying these principles, we find that the operative date for the Respondent’s withdrawal of recognition in this case was not December 2, 2002—when the Respon- dent, based on an employee petition, announced that it would withdraw recognition when the collective-bargain- ing agreement expired—but rather March 8, 2003, the contract expiration date. By that latter date, as explained, the Union had demonstrated to the Respondent that it enjoyed majority support.8 At most, then, the Respon- dent had conflicting evidence concerning the employees’ support for the Union. Although such evidence might have supported the filing of an RM election petition with the Board under the good-faith reasonable-uncertainty 6 Chairman Battista and Member Kirsanow did not participate in Levitz and express no view as to whether it was correctly decided. In this regard, they note that no party contends that Levitz should be over- ruled. 7 The judge correctly determined that the Respondent’s withdrawal of recognition must be analyzed under the principles set forth in Levitz. However, the judge then went on to analyze the case under the pre- Levitz standard. Thus, we disavow the judge’s analysis to the extent it conflicts with the analysis here. 8 Contrary to the Respondent’s contention, the Union’s evidence of continuing majority support was gathered in a timely fashion. Where, as here, the Union does not have majority status at the time when the employer announces its intention to withdraw recognition, Chairman Battista would require that the union present, within a rea- sonable time, any evidence of reacquisition of majority status. In this case, that reasonable period is properly defined by the period between the beginning of the open period of the contract and the expiration of that contract. Because the Union presented the employer with its evi- dence on the outer edge of that period, Chairman Battista finds that its evidence was timely presented. standard announced in Levitz for such petitions, it was not sufficient to support a withdrawal of recognition. See Levitz, 333 NLRB at 727–729. In its exceptions, the Respondent contends that it ac- tually withdrew recognition on December 2, when the only evidence before it pointed to a loss of majority status, and that it was entitled to withhold recognition thereafter pursuant to the “anticipatory withdrawal of recognition” line of cases. See, e.g., Abbey Medical, 264 NLRB 969 (1982), enfd. mem. 709 F.2d 1514 (9th Cir. 1983); Burger Pits, 273 NLRB 1001 (1984), enfd. sub nom. HERE v. NLRB, 785 F.2d 796 (9th Cir. 1986). In essence, the Respondent argues that, having announced on December 2 that it was withdrawing recognition, it was entitled to rely on the evidence ex- isting at that time and to ignore any contradictory evi- dence that might be presented later. There is no merit in this contention. The Respondent did not, and could not, withdraw recognition on December 2; that would have been unlawful regardless of the evidence of loss of majority support for the Union.9 Instead, it announced on De- cember 2 that it was withdrawing recognition effective March 8, when the contract expired.10 And, in fact, the Respondent did withdraw recognition on March 8. Accordingly, the Respondent’s action was lawful only if, as of March 8, the Union had lost majority support. Levitz, 333 NLRB at 725. Thus, in determining whether to follow through on its previously announced intention to withdraw recognition, the Respondent could not rely solely on the evidence it had received on December 2. Contrary to the Respondent’s claim, we are not seeking to “obliterate” or “render moot” the ability of employers to engage in anticipatory withdrawals of recognition. An employer can still follow through on 9 It is well established that a union enjoys a conclusive presump- tion of majority status during the life of a collective-bargaining agreement (up to 3 years). See Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996). Thus, because the contract was still in effect on December 2, the Respondent could not have withdrawn recognition effective that day, or at any time before March 8. 10 To this point, the Respondent acted lawfully. Under the “an- ticipatory withdrawal” cases, an employer faced with evidence that an incumbent union has lost majority support during the term of a collective-bargaining agreement may lawfully refuse to negotiate a successor agreement and announce that it will not recognize the union after the contract expires, provided that it complies with the existing contract in the interim. However, an employer’s “with- drawal of recognition [is] as to—and only as to—negotiating a suc- cessor contract to the existing agreement.” Abbey Medical, 264 NLRB at 969. Such an employer may not completely withdraw recognition until the contract expires because until then the union enjoys an irrebuttable presumption of majority status. See Levitz, 333 NLRB at 730 fn. 70. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 976 its anticipatory withdrawal of recognition if it can prove actual loss of majority support on the date that recogni- tion is subsequently withdrawn. Nor would the an- nouncement of an anticipatory withdrawal be unlawful, in and of itself, if it were properly supported by objective evidence at the time of the announcement and that evi- dence survived any timely challenge. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, we shall order the Respondent to cease and desist from engaging in such conduct and to take certain steps to effectuate the policies of the Act. We shall order the Respondent to reinstate the health insurance plan it had prior to February 1, 2003. In addi- tion, we shall order that the Respondent make whole the unit employees for any losses they may have suffered as a result of the Respondent’s unilateral change in its health insurance benefits, in accordance with Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), and Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F. 2d 502 (6th Cir. 1971). Interest shall be computed as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also order the Respondent, if requested by the Union, to rescind any unilateral changes in wages, bene- fits, and conditions of employment implemented since the withdrawal of recognition on March 8, 2003. Noth- ing in this Order, however, shall be construed to require the Respondent to withdraw any benefit previously granted unless requested by the Union. See Taft Broad- casting Co., 264 NLRB 185 fn. 6 (1982). Finally, having found that the Respondent unlawfully withdrew recognition of the Union, we shall order that the Respondent bargain with the Union in the bargaining unit described below, with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. For the reasons set forth in Caterair International, 322 NLRB 64 (1996), we find that an affirmative bargaining order is warranted in this case as a remedy for the Re- spondent’s unlawful withdrawal of recognition. We ad- here to the view that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining represen- tative of an appropriate unit of employees.” Id. at 68.11 11 Chairman Battista does not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy” for an 8(a)(5) violation. He agrees with the District of Columbia Circuit that a case-by-case analy- sis is required to determine if the remedy is appropriate. Saginaw Con- trol & Engineering, Inc., 339 NLRB 541, 546 fn. 8 (2003). He recog- In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposi- tion of such an order. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court summarized its requirement that an affirma- tive bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: ‘(1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining repre- sentatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.’” Id. at 738. Although we respectfully disagree with the court’s requirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors warrants an affirmative bargaining order. (1) An affirmative bargaining order in this case vin- dicates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Respondent’s withdrawal of recognition and result- ing refusal to bargain with the Union for a successor collective-bargaining agreement. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the violation. Since the Union was never given an opportunity to reach a successor agreement with the Respondent, it is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable period of time that the employees will be able to fairly nizes, however, that the view expressed in Caterair International represents extant Board law. See Flying Foods, 345 NLRB 101 fn. 23 (2005). Member Kirsanow observes that the Board’s practice of routinely ordering bargaining to remedy an unlawful refusal to bargain is of exceptionally long duration and was unanimously reaffirmed in Caterair International after full briefing and oral argument, and no party challenges that settled practice here. On this basis, Member Kirsanow joins Member Liebman in adhering to the Caterair doc- trine. As to the merits of that doctrine, Member Kirsanow will re- serve judgment until the issue is presented in a case in which it is fully briefed by the parties, and preferably also by amici. PARKWOOD DEVELOPMENTAL CENTER 977 assess for themselves the Union’s effectiveness as a bar- gaining representative. (2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union. It also ensures that the Union will not be pressured by the Respondent’s withdrawal of recognition to achieve immediate results at the bargaining table following the Board’s resolution of its unfair labor practice charges and issuance of a cease- and-desist order. Providing this temporary period of insulated bargaining will also afford employees a fair opportunity to assess the Union’s performance in an at- mosphere free of the Respondent’s unlawful conduct. (3) A cease-and-desist order, alone, would be inade- quate to remedy the Respondent’s withdrawal of recogni- tion and refusal to bargain with the Union because it would allow another such challenge to the Union’s ma- jority status before the taint of the Respondent’s previous unlawful withdrawal of recognition dissipated. Allowing another challenge to the Union’s majority status without a reasonable period for bargaining would be particularly unfair in light of the fact that the litigation of the Union’s charges took several years and as a result, the Union needs to reestablish its representative status with unit employees. Indeed, permitting a decertification petition to be filed immediately might very well allow the Re- spondent to profit from its own unlawful conduct. We find that these circumstances outweigh the temporary impact the affirmative bargaining order will have on the rights of employees who oppose continued union repre- sentation. For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the violations in this case. 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, Parkwood Developmental Center, Valdosta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with United Food and Commercial Workers International Union Local 1996 as the exclusive collective-bargaining representative of the employees in the following appro- priate unit: All full-time and regular part-time employees em- ployed at Parkwood Developmental Center, Val- dosta, Georgia, including custodians, housekeeping aides, unit housekeepers, laundry employees, main- tenance employees, car/bus drivers, horticulturists, cooks, assistant cooks, dietary aides, dietary AM/PM janitors, social work technicians, direct care staff employees, behavior program aides, medication nurses, treatment nurses, infection control nurses, physical health records nurses, transportation aides, sensorimotor therapists, but excluding receptionist, secretary to the Administrator, purchase coordinator, accounting/bookkeeper, QMRP’S and QMR records auditor, clinical records staff, computer data and pro- gram specialists, team leader supervisors, computer specialist and assistant to Personnel Director, profes- sional employees, managerial employees, guards and supervisors as defined in the Act. (b) Telling its employees that because of the Union employees were not receiving wage increases. (c) Telling its employees that they cannot talk about the Union during company time. (d) Unilaterally changing the terms of its collective- bargaining agreement by charging employees for indi- vidual health care coverage. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the Respondent’s employees in the above unit with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. (b) Reinstate the health insurance plan as it existed prior to February 1, 2003, and make whole unit em- ployees for any losses they may have suffered as a result of the unilateral change, with interest, in the manner set forth in the remedy section of this decision. (c) If the Union requests, cancel any unilateral changes made to wages, hours, or other terms and con- ditions of employment since its withdrawal of recogni- tion of the Union on March 8, 2003; provided, how- ever, that nothing in this Order shall be construed as requiring the Respondent to rescind any benefit previ- ously granted unless the Union requests such action. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may al- low for good cause shown, provide at a reasonable DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 978 place designated by the Board or its agents, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records, includ- ing an electronic copy of such records if stored in elec- tronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Valdosta, Georgia, copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, 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 facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 21, 2002. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. 12 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” WE WILL NOT refuse to recognize and bargain in good faith with United Food and Commercial Workers International Union Local 1996 (the Union) as collec- tive-bargaining representative of the employees in the following bargaining unit: All full-time and regular part-time employees em- ployed at Parkwood Developmental Center, Val- dosta, Georgia, including custodians, housekeeping aides, unit housekeepers, laundry employees, main- tenance employees, car/bus drivers, horticulturists, cooks, assistant cooks, dietary aides, dietary AM/PM janitors, social work technicians, direct care staff employees, behavior program aides, medication nurses, treatment nurses, infection control nurses, physical health records nurses, transportation aides, sensorimotor therapists, but excluding receptionist, secretary to the Administrator, purchase coordinator, accounting/bookkeeper, QMRP’S and QMR records auditor, clinical records staff, computer data and pro- gram specialists, team leader supervisors, computer specialist and assistant to Personnel Director, profes- sional employees, managerial employees, guards and supervisors as defined in the Act. WE WILL NOT tell our employees that they are not receiving wage increases because of the Union. WE WILL NOT tell our employees they cannot talk about the Union during company time. WE WILL NOT unilaterally change the terms of our collective-bargaining agreement with the Union by charging our employees for individual health insurance coverage. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL recognize and, on request, bargain collec- tively with the Union as the exclusive representative of our employees in the above unit with respect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. WE WILL, upon request, reinstate the health insur- ance plan as it existed prior to February 1, 2003, and WE WILL make whole unit employees for any losses they may have suffered as a result of our unlawful uni- lateral change, with interest. WE WILL, on the Union’s request, cancel and rescind any unilaterally implemented changes in wages, bene- fits, and conditions of employment since our with- drawal of recognition of the Union on March 8, 2003. PARKWOOD DEVELOPMENTAL CENTER, INC. PARKWOOD DEVELOPMENTAL CENTER 979 Chris Zerby, Esq., for the General Counsel. Clifford H. Nelson Jr., Esq., for the Respondent. James D. Fagan Jr., Esq., for the Charging Party. DECISION PARGEN ROBERTSON, Administrative Law Judge. A hearing was held in Valdosta, Georgia, on October 29, 2003. I have considered the entire record and briefs filed by Respondent and the General Counsel in reaching this decision. I. JURISDICTION At material times, Respondent has been a Georgia corpora- tion, with an office and principal place of business in Valdosta, Georgia, where it has been engaged in the operation of a devel- opmental center for handicapped residents. In conducting its business operations, Respondent annually derives gross revenue in excess of $100,000. Annually, in conducting its business operations, Respondent purchases and receives goods valued in excess of $50,000 at its Valdosta facility directly from points outside Georgia. Respondent has been an employer engaged in commerce within the meaning of the National Labor Relations Act (the Act) at all material times. II. LABOR ORGANIZATION At material times, the Charging Party (the Union) has been a labor organization within the meaning of the Act. III. BARGAINING UNIT The following employees constitute a unit appropriate for the purposes of collective bargaining: All full-time and regular part-time employees employed at Parkwood Developmental Center, Valdosta, Georgia, includ- ing custodians, housekeeping aids, unit housekeepers, laundry employees, maintenance employees, car/bus drivers, horticul- turists, cooks, assistant cooks, dietary aides, dietary AM/PM janitors, social work technicians, direct care staff employees, behavior program aides, medication nurses, treatment nurses, infection control nurses, physical health records nurses, trans- portation aides, sensorimotor therapists, but excluding recep- tionist, secretary to the Administrator, purchase coordinator, accounting/bookkeeper, QMRP’S and QMR records auditor, clinical records staff, computer data and program specialists, team leader supervisors, computer specialist and assistant to Personnel Director, professional employees, managerial em- ployees, guards and supervisors as defined in the Act. IV. THE DISPUTED ISSUES Briefly stated, this matter originated when Respondent re- ceived a petition from a majority of its unit employees in De- cember 2002. Respondent then notified the Union that it was withdrawing recognition at the end of its existing contract. The General Counsel contended the employees’ petition was tainted by unfair labor practices. Subsequently, in January 2003 Re- spondent announced allegedly unlawful changes in its collec- tive-bargaining agreement. On March 7, 2003, the Union informed Respondent that it represented a majority of the unit employees and supplied the Union with evidence supporting that claim. Respondent replied that it did not believe the Union represented a majority. The collective-bargaining agreement terminated on March 8, 2003. A. Section 8(a)(1) and related issues: November 21, 2002 Employee Cornelius Graham testified that he signed a pe- tition rejecting the Union. He signed that petition on Novem- ber 21, 2002, in the maintenance office. There were other employees in the maintenance office at that time along with Supervisor Johnny Jones. After Graham signed the petition and was leaving Johnny Jones said, “[T]hanks for your sup- port.” Later, that same afternoon, Graham walked up to Johnny Jones in the parking lot and asked Jones, “[W]hat’s going on with the union?” Jones replied, “We are not making any raises due to the union and just we, you know, trying to see if we can get it out.” Cornelius Graham also testified that he went to Charles Templeton’s office on November 21, and asked Templeton what was going on with the union and why was it trying to be voted out. Templeton showed papers from a red folder that illustrated wages at Respondent and at other companies. Graham testified the documents showed wages at the other companies were higher than wages at Respondent. Templeton said the first year contract was a big success and that was why they were trying to get the Union out. Charles Templeton admitted that Graham did come by his office around November 21, 2002. Templeton denied that he had the conversation testified to by Graham. He does maintain a red folder and he showed Graham that folder. However, the only document he keeps in that folder is the collective- bargaining agreement. Templeton denied that he told any employee the employees would not receive wage increases because of the Union. 1. December 2, 2002 The General Counsel alleged and Respondent admitted that the Union was the exclusive collective-bargaining repre- sentative of the unit employees. On December 2, 2002, Re- spondent wrote the Union that it had received objective evi- dence1 that a majority of its unit employees no longer wished to be represented by the Union and that it would withdraw recognition effective March 8, 2003.2 2. Second week of December 2002 Pamela Kirkland testified that Charles Templeton called her into his office during the second week of December 2002. Templeton told Kirkland that this is not a reprimand but under no circumstances is union business to be discussed on company time. Templeton was asked on direct examina- tion if he told Kirkland she could not engage in union activi- ties on company time. Templeton answered yes. He subse- quently explained that he was trying to enforce existing writ- ten rules regarding solicitation and distribution and that those 1 There is no dispute that Respondent received a petition signed by a majority of its unit employees stating their desire to not be represented by the Union (GC Exh. 9). 2 The collective-bargaining agreement expired on March 8, 2003. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 980 rules prohibit solicitation on company worktime. He testified that he told Kirkland that she could not discuss union business or any other kind of solicitation on worktime. Findings: Credibility Testimony given by Charles Templeton, Cornelius Graham, and Pamela Kirkland is critical to an analysis of the issues herein. Charles Templeton is Respondent’s administrator. Counsel for the General Counsel alleged that Templeton en- gaged in unlawful conduct by his comments to Graham and Kirkland. Additionally, the General Counsel alleged that super- visor Johnny Jones’ comments to Cornelius Graham were unlawful. Jones did not testify. As shown above, Cornelius Graham testified and Templeton admitted that Graham went to Templeton’s office on November 21, 2002. Templeton denied that he had the conversation testi- fied to by Graham. Templeton denied that he told any employee they would not receive wage increases because of the Union. Graham appeared unsure of his testimony regarding his con- versation with Templeton. He testified that Templeton said the first year of the collective-bargaining contract had been a big success and Templeton showed him wages of other employers. In view of the full record and their demeanor, I credit Templeton and do not credit Graham to the extent their testi- mony conflicts. As to Graham’s testimony regarding Johnny Jones, I credit Graham. Jones did not testify and Graham’s testimony in that regard stands unrebutted. Pamela Kirkland testified that Templeton called her into his office during the second week of December 2002. Templeton told Kirkland that this is not a reprimand but under no circum- stances is union business to be discussed on company time. Charles Templeton testified that he did have a conversation as related by Pamela Kirkland. After initially admitting that he told Kirkland she could not discuss the Union on company time, he testified that he told Kirkland that she could not dis- cuss union business or any other kind of solicitation on work- time. Respondent pointed to its employees’ handbook (R. Exh. 1) as supporting Templeton’s version of his conversation with Kirkland. At page 35 the handbook contains a no solicitation rule which prohibits solicitation during worktime. Worktime is explained in that rule: “‘Work time’ does not include meal time or break time or other specified periods during the workday when employees are properly not engaged in performing their duties.” However, in view of the entire record and especially in view of the demeanor of Templeton and Kirkland, along with Templeton’s initial admission that Kirkland testified correctly, I credit the testimony of Kirkland. 3. Supervisor Jones It is alleged that supervisor Johnny Jones told an employee that employees were not receiving wage increases because of the Union. As shown above, that allegation was supported by substantial evidence. Cornelius Graham testified3 that after he 3 Jones did not testify and Graham’s testimony regarding Jones was not disputed. Respondent did show that even though Jones was a super- visor he was not a supervisor in maintenance. signed the petition to reject the Union he walked up to Jones in the parking lot and asked what was going on with the Un- ion. At that time Jones was aware of Graham having signed the petition against the Union. Jones replied, “We are not making any raises due to the union and just we, you know, trying to see if we can get it out.” Jones’ comments included a threat that employees had lost wage increases because of the Union and constituted a violation of Section 8(a)(1). 4. Administrator Charles O. Templeton: November 21 It was alleged that Templeton also told Cornelius Graham that employees were not receiving wage increases because of the Union. As shown above, I did not credit Graham’s testi- mony regarding his November 21 meeting with Templeton. Instead I credited Templeton’s testimony. That testimony showed that he did engage in conduct which constituted a violation of Section 8(a)(1). 5. Second week of December As shown above, I credited the testimony of Pamela Kirk- land that Charles Templeton told her he could not discuss union business on company time. Despite the narrow word- ing of its written no-solicitation rule, Templeton’s comment included a cautioning that is too broad and constituted an additional violation of Section 8(a)(1). 6. The questions regarding the December 2 petition Respondent received a petition on December 2, 2002, signed by a majority of its bargaining unit employees. That petition (GC Exh. 9) was captioned, “We, The employees of Parkwood Development Center do not want to be repre- sented by the United Food and Commercial Workers Union Local 1996.” Respondent wrote the Union that it had re- ceived the petition and that it would withdraw recognition at the end of the contract on March 8, 2003. There is no dispute that Respondent received the unit em- ployees’ petition on December 2. However, the General Counsel contended the petition was tainted by Respondent’s unfair labor practices. As shown above, I find that Respondent engaged on one violation of Section 8(a)(1) before Respondent received its employees’ petition. That violation occurred on November 21 when Supervisor Jones told Cornelius Graham the em- ployees were not making raises due to the Union and he wanted to get the Union out. The second unfair labor practice which involved Administrator Templeton and Pamela Kirk- land, occurred after Respondent received the December 2 petition and, for that reason, could not have tainted the peti- tion. As to the November 21 conversation between Jones and Graham, that conversation occurred after Cornelius Graham signed the petition against the Union. Graham testified that several people including supervisor Jones were present in the room where he signed the petition. Jones had said nothing to Graham before Graham signed the petition. After Graham signed the petition Jones thanked him. Later that same day Graham approached Jones and asked Jones about the Union. At that time Jones made his 8(a)(1) comment. PARKWOOD DEVELOPMENTAL CENTER 981 Those findings show that the November 21 8(a)(1) violation did not taint the antiunion petition. Obviously, the unfair labor practice did not influence Cornelius Graham. Graham signed the petition before Jones’ 8(a)(1) comment. Moreover, there was no showing that any other employee that signed the petition was aware of Jones’ November 21 comments to Graham. Therefore, I find the evidence failed to show that any unfair labor practice influenced one or more employees to sign the antiunion petition. There was no causal relationship between the unlawful conduct and the petition. Master Slack Corp., 271 NLRB 78 (1984). B. The 8(a)(5) allegations: January 2003 The General Counsel alleged that Respondent engaged in un- fair labor practices in January 2003 by changing its health in- surance program by charging its employees a premium without notifying or first bargaining with the Union. There is no factual dispute but that Respondent changed its health insurance program by charging its unit employees each pay period for a portion of individual coverage premiums.4 That change was announced to employees on January 14, 2003. It became effective on February 1, 2003. There is no dispute but that the collective-bargaining agree- ment did not expire until March 8, 2003. The collective- bargaining agreement included the following regarding health insurance at article 23: The Employer will provide eligible employees coverage un- der the health insurance program afforded to other employees at the facility. There is no charge for individual coverage un- der this program. Dependent/family coverage will be made available if employees elect to pay the group rates for such additional coverage. The Employer retains the ability to pro- vide similar coverage through another insurance carrier, as well as to change coverage terms and/or carriers if such action were taken on a corporate-wide basis. Respondent did not notify or bargain with the Union regard- ing that change in insurance premiums.5 Before the change, unit employees were not required to pay anything for individual health insurance coverage. The Union filed a grievance over Respondent’s health insur- ance change. The grievance went to arbitration and the arbitra- tor found the grievance had merit. The arbitrator’s award in- cluded restoration of the premiums charged unit employees from February 1 until the expiration of the collective- bargaining agreement on March 8. 1. March 8, 2003 On March 7, 2003 the Union wrote Respondent: Enclosed is proof that United Food and Commercial Workers Union Local 1996 is the majority representative of the em- ployees in the bargaining unit at your facility. The workers have revoked the petitions previously submitted to you. En- 4 From February 1, 2003, unit employees were charged $20 for medical coverage, $8.88 for dental coverage, and $1 for vision cover- age, per pay period. 5 Respondent argued that its notification to unit employees consti- tuted notice to the Union. closed are copies of those revocations. The United Food and Commercial Workers Union Local 1996 demands that you commence bargaining for a new collective bargaining agreement and you continue to recognize the union. . . . [GC Exh. 5.] Respondent replied on March 7: . . . Please be advised that PDC does not believe that Local 1996 represents a majority of its employees and hereby de- nies your demand for recognition. Under these circum- stances, if the Union believes that it has the support of a majority of employees, you are certainly familiar with the avenues available for pursuing representation rights under the National Labor Relations Act. 2. Findings: Credibility There are no significant, material factual disputes regard- ing the January and March 2003 allegations. 3. Conclusions: January 2003 Respondent changed its health insurance program effec- tive February 1, 2003. Before February 1 unit employees were not required to pay for individual health insurance. From February 1 unit employees were required to pay a por- tion of the premiums each per pay period for individual health insurance. Respondent argued that the February 1 change was author- ized under the terms of its collective-bargaining contract. Since it applied the change to all employees its action fell within the enabling provision of the last sentence of article 23: The Employer retains the ability to provide similar cover- age through another insurance carrier, as well as to change coverage terms and/or carriers if such action were taken on a corporate-wide basis. Respondent offered parole evidence that it intended to ex- tend the same health coverage to all employees and its Feb- ruary 1 change in individual insurance premiums did involve all employees. Parole evidence may be relevant where a contract is am- biguous. In this instance I am convinced that the relevant contract provision was not ambiguous and parole evidence regarding Respondent’s intent is not relevant. Sansia, Inc., 323 NLRB 107 (1997). The key here is the contract provi- sion that there “is no charge for individual coverage.” More- over, nothing in the health insurance provisions of the con- tract permitted Respondent to change employees’ premiums. The only changes mentioned regard the right of Respondent to change insurance carriers and to change the coverage terms. The contract continued to apply to unit employees until March 8 and the Union should have been given an opportu- nity to bargain before Respondent changed to a policy of charging for individual health insurance coverage. 4. March 8, 2003 Respondent notified the Union on December 2, 2002, that it had objective evidence that a majority of its unit employ- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 982 ees wished to no longer be represented by the Union. It gave that notice to the Union after receiving a petition signed by a majority of its unit employees. The Board considered the question of what is timely filing of a petition to remove a union representing employees of a health care institution,6 in Trinity Lutheran Hospital, 218 NLRB 199 (1975). There, the Board held that all petitions filed more than 90 days but not over 120 days before the terminal date of any contract will hereafter be found timely. Here, the employees submitted their petition to Respondent on December 2. That was 96 days before the contract expired on March 8, 2003. Therefore, Respondent was justified in treating the employee’s petition as being timely. On March 7, 2003, the Union wrote Respondent that a ma- jority of the unit employees desired union representation. The Union included in that letter evidence of majority representa- tion. Some of the employees showed that they revoked their signatures to the December 2 petition to get rid of the Union. Respondent replied to the Union that it did not believe the Un- ion represented a majority of its unit employees. 5. Determinations: January In view of the full record, I find Respondent had a duty to notify and bargain on demand with the Union before making changes to the collective-bargaining agreement during that agreement’s term. Individual medical insurance was one of the provisions of that agreement and Respondent’s changed that portion of the contract, which stated there “is no charge for individual coverage” under the health insurance program. From February 1, 2003, unit employees were charged for individual coverage under the health insurance program. Respondent’s unilateral change constitutes a violation of Section 8(a)(1) and (5). See Laborers Health & Welfare Trust Fund for Northern California v. Advanced Lightweight Concrete Co., 484 U.S. 539 (1988). 6. March In Levitz Furniture Co., 333 NLRB 717 (2001), the Board considered a factual situation similar to the instant case. There, like here, the employer and the union were parties to a collec- tive-bargaining agreement. That contact expired on January 31, 1995. On December 1, 1994, the employer received a petition signed by a majority of its unit employees stating that they did not wish to be represented by the union. On December 2, 1994, the employer informed the union that it had received objective evidence that the union had lost majority support and that it would withdraw recognition effective at the end of the collec- tive-bargaining agreement. On December 14, 1994, the union informed the employer that it had objective evidence of its majority status and was ready at any time to demonstrate that fact. The employer ac- knowledged the union’s claim on December 21 but repeated that it had objective evidence that the union had lost majority support and stated that, except as required by the contract, it would no longer recognize the union. The Board found that the employer continued to honor the contract until it expired on 6 There is no dispute but that Respondent was a health care institu- tion at all material times. January 31, 1995. When the contract expired the employer withdrew recognition. The Board found no refusal to bargain in Levitz, supra, stating: We find that the Respondent has demonstrated that it had a good-faith uncertainty as to the Union’s continued majority status when it withdrew recognition on February 1. The Respondent had previously received a petition, apparently signed by a majority of the unit employees, stating that they no longer wished to be represented by the Union. The Un- ion later offered to prove that it still had majority support. But even if the Respondent had inspected the Union’s claimed evidence, and even if that evidence had supported the Union’s assertion, it would simply have produced a conflict with the earlier petition. Thus, the Respondent could still reasonably have been uncertain about the Un- ion’s majority status. Under Allentown Mack [Sales & Ser- vices v. NLRB, 522 U.S. 359 (1998)], then, the Respondent was warranted in withdrawing recognition. There are at least two differences between Levitz and the instant case. Unlike Levitz, Respondent did not fully comply with all the contractual terms before the contract expired. Here, as shown above, Respondent made a unilateral change by unlawfully changing it health insurance policy to require employee contributions. Additionally, the union in Levitz reacted more quickly to the employer’s declaration that it would withdraw recognition at the expiration of the contract. There, the union responded in 12 days. Here, the Union did not respond until the day before the contract expired. That was over 3 months after the Respondent notified the Union it would withdraw recognition. Nevertheless, there is no doubt that Levitz is the control- ling law in this instance. However, that are inconsistencies between the Board’s holding in Levitz and the Board’s an- nouncement in Levitz as to prospective rulings. There, the Board stated among other things, that the, court’s decision in Allentown Mack had a significant im- pact on the Board’s long established scheme. As a result of that decision, employers may now withdraw recognition from unions based on reasonable uncertainty. . . . . [Levitz Furniture Co., 333 NLRB at 722.] The Board then considered in its analysis, whether it should apply different standards in the future, regarding the questions of (1) withdrawal of recognition; (2) the filing of a RM petition; and (3) the polling of employees. The Board decided to apply one standard when an employer has with- drawn recognition, another standard when an employer filed a RM petition, and to delay in deciding upon a standard in polling cases. The standard the Board decided to apply in withdrawal of recognition cases, is stated at Levitz, 333 NLRB at 722: We recognize that here are a multitude of options, each with supporters and critics. We have carefully considered those numerous possibilities in light of the Act’s text and policies. In our view, there is no basis in either law or pol- icy for allowing an employer to withdraw recognition from PARKWOOD DEVELOPMENTAL CENTER 983 an incumbent union that retains the support of a majority of the unit employees, even on a good faith belief that majority support has been lost. Accordingly, we shall no longer allow an employer to withdraw recognition unless it can prove that an incumbent union has, in fact, lost majority support. Then, in the next paragraph, the Board stated its determina- tion for cases involving the filing of a RM petition: While adopting a more stringent standard for withdrawals of recognition, we find it appropriate to adopt a different, more lenient standard for obtaining RM elections. Thus, we empha- size that Board-conducted elections are the preferred way to resolve questions regarding employees’ support for unions. For that reason, we find it appropriate to abandon the unitary standard for withdrawing recognition and processing RM pe- titions. Instead, we shall allow employers to obtain RM elec- tions by demonstrating reasonable good-faith uncertainty as to incumbent unions’ continued majority status. In Levitz as in the instant case, there was no question of Re- spondent filing a RM petition. Instead the Board was concerned with a withdrawal of recognition and it held that Levitz did not act unlawfully because it had an uncertainty as to the majority support of the union. However, the Board announced that in the future it would apply a different standard for withdrawal of recognition cases. Instead of concerning itself with the belief of the employer it would look to the evidence regarding majority support. Only when evidence revealed that a union had lost majority support would the employer be justified in withdraw- ing recognition. I shall apply the prospective standard announced by the Board for withdrawal of recognition regarding Respondent’s December 2 notice to the Union. That standard set out in the Levitz decision was “we shall no longer allow an employer to withdraw recognition unless it can prove that an incumbent union has, in fact, lost majority support.” The uncontested evi- dence included a petition of the employees submitted to Re- spondent on December 2 showed that the Union had lost its majority support. There were no negotiations nor were there requests to nego- tiate, after Respondent notified the Union of its plan to with- draw recognition. On March 7, 2003, the Union wrote Respondent that it had majority representation and it included proof of its claim. Re- spondent replied that same day that it doubted the Union’s claim and would not recognize the Union. The Union argued that March 7 proof rebutted the December 2 evidence that the Union had lost majority status. However, that claim is illogical. At most, the March 7 events illustrated that perhaps some of the unit employees changed their minds after December 2. Moreover, a similar situation existed in Lev- itz and the Board did not find that the subsequent petition sup- porting the Union had compromised the employees’ earlier petition against the Union. From December Respondent was apparently aware only that the Union had lost its majority. That issue was called into ques- tion over 3 months later when the Union submitted evidence that a majority of the unit employees wanted union representa- tion. It is apparent that Respondent was justified in expressing doubt at to the Union’s claim in its reply letter of March 7.7 Under both the actual holding in Levitz which found no un- fair labor practice on the basis of the General Counsel’s fail- ure to prove that Levitz lacked a reasonable uncertainty and under the prospective standard the Levitz Board applied to RM petition rights, Respondent would prevail. Additionally, I must consider the Supreme Court’s ruling in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). There, the issue involved an employer’s poll of unit employees. In brief, the Court accepted that the union was an incumbent union of a successor employer and that the union had made a demand for recognition on claim of majority. The employer replied that it had a good-faith doubt as to support of the union among the employees but that it had arranged for an independent poll by secret ballot of its unit employees. That poll resulted in a loss for the union and in subsequent unfair labor practices proceedings the Board found the employer had unlawfully withdrawn recognition. The Court held among other things that doubt should mean uncertainty. It stated, [T]he question presented for review, therefore, is whether, on the evidence presented to the Board, a reasonable jury could have found that Allentown lacked a genuine, reason- able uncertainty about whether Local 724 enjoyed the con- tinuing support of a majority of unit employees. In our view, the answer is no. The Board’s finding to the contrary rests on a refusal to credit probative circumstantial evi- dence, and on evidentiary demands that go beyond the sub- stantive standard the Board purports to apply. [522 U.S. at 368.] The Court went on to hold that the Board’s reasonable doubt standard for polling employees is facially rational and consistent with the Act but its finding that the employer is that case lacked such a doubt was not supported by substan- tial evidence on the record as a whole. Here, the question may be should the applied standard re- quire evidence of lost majority or evidence of uncertainty. The evidence in this particular case lends practical support to application of the uncertainty standard. On March 7 (i.e., the day before the contract expired), the Union presented evidence of majority support. From receipt of that claim, Respondent was justified in claiming uncertainty in view of both the Union’s March 7 letter and its receipt of a petition showing lack of majority support on December 2. However, under a strict reading of the Board’s new standard for with- drawal of recognition, Respondent may have engaged in unfair labor practices by withdrawing recognition on or after March 7. The evidence did not clearly establish that a major- ity of the unit employees did not support the Union on that date. The relevant standard in this case is did the Union actually lose its majority support. The evidence shows that in De- cember 2002 Respondent received an untainted petition 7 In Levitz the employer expressed doubt after the union offered to prove its majority support. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 984 signed by a majority of its unit employees. The petition showed that the Union lost its majority and at that time Respondent announced that it was withdrawing recognition. Respondent met the Levitz prospective standard for withdrawal of recogni- tion on December 2, 2002. The situation was different on March 7, 2003. At that time the evidence was unclear whether the Union had actually lost its majority support. Further analysis is necessary to determine whether Respondent committed an unfair labor practice by failing to recognize the Union on or after March 7. The question as of March 7, may be did Respondent engage in unlawful conduct by refusing to rescind its prior announced plan to withdraw recognition. At that time, in accord with Lev- itz, there was a “reasonable uncertainty” that the Union repre- sented a majority.8 Although clear evidence of a lost majority was lacking on March 7, some consideration must be given to the converse of the “withdrawal of recognition” standard. If Respondent had recognized the Union on March 7 it would have done so despite its confusion or uncertainty about whether the Union enjoyed a majority and it would have possibly sub- jected itself to an 8(a)(2) violation. Moreover, if Respondent had rescinded its withdrawal of recognition as announced on December 2, the unit employees would have been subjected to union representation regardless of their actual desire. The record evidence showed that the Union had lost majority support at the time of Respondent December 2 announcement that it would withdraw recognition at the conclusion of the collective-bargaining agreement. The record evidence of subse- quent events showed that a reasonable uncertainty was created on March 7 when the Union offered proof that it represented a majority of the unit employees. If Respondent had not made an earlier announcement of its plan to withdraw recognition, it is possible that it would have engaged in an illegal withdrawal of recognition if it had, for the first time, announced its with- drawal of recognition on March 8. That is true because on March 8 the evidence did not show without dispute or question, that the Union had lost majority support. In other words the evidence at that time did not satisfy the prospective standard for determining the legality of withdrawal of recognition under Levitz. However, the undisputed record evidence showed that Re- spondent did make an earlier announcement that it would with- draw recognition. After receiving the employees’ December 2 petition Respondent announced it would withdraw recognition on the March 8 expiration of the contract. At that time the evi- dence showed “that an incumbent union has, in fact, lost ma- jority support.” It appears that the situation that developed on March 7 when the Union wrote Respondent and offered proof that it repre- sented a majority of unit employees, was unlike what was an- ticipated by the Levitz Board in announcing its prospective withdrawal of recognition standard. Instead of a situation where an employer withdrew recognition against a background of presumed majority such as under the contract bar rule, the unit 8 As in Allentown Mack Sales, Respondent had received conflicting petitions as to whether a majority of its unit employees wanted union representation. employees by their December 2 petition, had shown that the Union did not have a majority. So, when the Union’s March 7 letter created a reasonable uncertainty there was no pre- sumption of majority. Instead, since December 2 the proof had been to the contrary. Under those circumstances Respondent may have been le- gally foreclosed from rescinding its earlier declaration and recognizing the Union. Instead under the holdings in Allen- town and Levitz, it may have been forced to view the situa- tion as, at most, a reasonable uncertainty of representation. That reasonable uncertainty was cast against a background of evidence showing that the Union had lost majority status on or before December 2, 2002, when a majority of the unit employees petitioned against representation. Of course, there was one avenue open to Respondent, which would not have involved a risk of unlawful conduct. That would have involved Respondent filing a RM petition. However, for whatever reason, Respondent did not file a representation petition. Moreover, neither did the Union file a representation petition on or after March 8. The evidence here may not fit into the Board’s prospective standard for withdrawal of recognition issues. However, I am convinced that the employees’ December 2 petition followed by Respondent’s immediate notice to the Union that it would withdraw recognition because of the Union’s loss of major- ity, changed this matter from a “withdrawal of recognition” question. On March 7 when the Union offered proof that it then represented a majority, there was no presumption of union majority. In that situation, I am convinced that Re- spondent had a reasonable uncertainty of the Union’s major- ity and it could not have legally recognized the Union. Moreover, the evidence here is very similar to the situa- tion in Levitz. Even though the union in Levitz as the Union here, subsequently offered proof of majority, the Board found no violation. I am not convinced that the Board in- tended to set a prospective standard for withdrawal of recog- nition cases, which would have resulted in a different finding in Levitz. Therefore, I find that Respondent did not engage in unlaw- ful conduct by refusing to recognize the Union. CONCLUSIONS OF LAW 1. By telling its employee that because of the union em- ployees were not receiving wage increases and by telling its employee that employees could not engage in union activi- ties on company time, Respondent, Parkwood Developmen- tal Center, Inc., engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By unilaterally changing unit employees’ medical in- surance program by charging bargaining unit employees each per pay period for a portion of individual coverage premiums without notice or bargaining with the Union, Respondent, Parkwood Developmental Center, Inc., violated Section 8(a)(1) and (3) of the Act. 3. Respondent has not otherwise engaged in unfair labor practices as alleged in the complaint. PARKWOOD DEVELOPMENTAL CENTER 985 REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. In view of my finding that Respondent unilaterally charged its bargaining unit employees for individual health insurance coverage, I order Respondent to make bargaining unit em- ployees whole for all losses suffered during the period beginning February 1, 2003, and ending at the March 8, 2003 expiration of the collective-bargaining agreement. [Recommended Order omitted from publication.]