HQM of Bayside, LLC

HQM OF BAYSIDE, LLC 348 NLRB No. 42 758 HQM of Bayside, LLC and United Food and Com- mercial Workers Union, Local 400. Case 5–CA– 30964 September 29, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH On February 25, 2004, Administrative Law Judge Karl H. Buschmann issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party 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 briefs1 and has decided to affirm the judge’s rulings, findings, and conclusions as discussed below and to adopt the recommended Order as modified.2 The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the employees’ collective-bargaining representative because the evidence on which the Re- spondent relied did not demonstrate the Union’s actual loss of majority status. For the following reasons, we agree with the judge that the Respondent violated the Act as alleged. Background On October 20, 1998, the Union was certified as the exclusive collective-bargaining representative of the em- ployees at the Respondent’s Bayside Care Center facility. On December 28, 2001, the Respondent and the Union entered into a collective-bargaining agreement that was effective from December 1, 2001, through November 30, 2002. In September 2002, the Respondent’s employees circu- lated a petition stating, “We the employees of Bayside Care Center do not [sic] no longer want to be represented by UFCW, Local 400.”3 A decertification election peti- tion was filed with the Board’s Regional Office on Sep- tember 30, 2002, but the Board dismissed it as untimely. By letter dated October 30, 2002, the Respondent noti- fied the Union that it would withdraw recognition from the Union, effective December 1, 2002. The letter stated that the disaffection petition was signed by “a clear ma- 1 The Respondent has requested oral argument. The request is de- nied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 We shall modify the judge’s recommended Order and substitute a new notice to include the unit description in the affirmative bargaining order. 3 This petition will be referred to as the disaffection petition. jority” of the employees. However, in early November 2002, another petition was circulated among the unit employees. That petition stated, “We the following em- ployees of Bayside Care Center, Lexington Park, Mary- land, DO NOT wish to withdraw recognition and or rep- resentation of United Food and Commercial Workers Local 400.”4 The Union’s petition was presented to the Board’s Regional Office on November 15, 2002. By letter dated November 26, 2002, the Union notified the Respondent that it had submitted to the Board a petition signed by a majority of bargaining unit employees that states that they desire to keep the Union as their bargain- ing representative. On December 1, 2002, based on the disaffection peti- tion, the Respondent withdrew recognition from the Un- ion and since then, the Respondent has not bargained with the Union as the representative of the unit employ- ees.5 On December 1, 2002, at least 58 employees were in the bargaining unit.6 The disaffection petition contained 34 signatures. In addition, employee Barbara Courtney, who did not sign the disaffection petition, signed the formal Board decertification petition. However, three employees who signed the disaffection petition (Ebony Butler, Latoya Spence, and Angelia Johnson) were not employed on the date the Respondent withdrew recogni- tion. Further, one of the signatures on the disaffection petition is that of Tina Hale, who was terminated by the Respondent on October 31, 2002.7 In addition to Hale, 12 other employees8 who signed the disaffection petition also later signed the subsequent union petition stating that the employees did not wish to withdraw recognition or representation from the Union.9 4 This petition will be referred to as the Union’s petition. 5 The parties agree that the signatures on both petitions are authentic, and they do not allege that the signatures on either of the petitions were obtained by coercive, fraudulent, or otherwise improper means. 6 The judge found that three additional employees should be in- cluded in the bargaining unit: Thomas Gray, Danielle Hawkins, and Samuel Quade. The Respondent excepts to their inclusion. In light of our disposition of this case, we find it unnecessary to pass on whether Gray, Hawkins, or Quade should be included in the unit. 7 Hale’s discharge was the subject of a grievance that was resolved in July 2003. In that settlement, Hale received backpay but no rein- statement. Hale also signed the Union’s petition. 8 The 12 employees in addition to Hale are Brenda Braden, Daisy Bush, Patricia Butler, Mary Dorsey, Tisha Ducket, Victoria Hebb, Grace Jones, Joseph Makle, Mary Medley, Shelisha Miles, Michelle Somerville, and Tamy Stephens. 9 The Union’s petition contained 34 signatures. However, two sign- ers (Sharon Chase and Tracy Epps) were ineligible for the bargaining unit, two others (Pearl Day and Della Smith) were not employed on the date of the Respondent’s withdrawal of recognition, one employee (Kelly Beals) signed the petition twice, and one signer was Tina Hale (discussed above) who had been discharged before the date of the with- HQM OF BAYSIDE, LLC 759 Analysis In evaluating whether the Respondent acted unlawfully in withdrawing recognition from the Union on December 1, 2002, we apply the standard established in Levitz Fur- niture Co. of the Pacific, 333 NLRB 717 (2001) (Levitz), under which the Respondent must show that the Union had actually lost its majority status when the Respondent withdrew recognition.10 See Port Printing Ad & Special- ties, 344 NLRB 354 (2005), enfd. sub nom. NLRB v. Seaport Printing Ad Specialties, Inc., No. 05-60347, 2006 WL 2092499 (5th Cir. 2006) (unpublished). The judge found that the disposition of this case rested on the status of the signatures of the employees who signed both the disaffection petition and the Union’s petition (the cross-over signatures). We agree with the judge that the Respondent was not entitled to rely on those cross- over signatures in withdrawing recognition. Accord- ingly, we also agree with the judge’s conclusion that the evidence the Respondent relied on in withdrawing rec- ognition did not demonstrate the Union’s actual loss of majority status. 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. If it fails to do so, it will not have rebutted the presumption of majority status, and the withdrawal of recognition will violate Section 8(a)(5). Id. (emphasis added).11 The union does not have to demon- strate conclusively to the employer prior to the withdrawal drawal of recognition and was not offered reinstatement. Thus, the Union’s petition contained 28 valid signatures. 10 Member Schaumber did not participate in Levitz and expresses no view as to whether it was correctly decided. In this regard, he notes that no party contends that Levitz should be overruled. 11 See, e.g., Levitz, 333 NLRB at 725 fn. 49. See also Vanguard Fire & Security Systems, 345 NLRB 1016, 1018 (2005), in which the em- ployer relied on eight signatures to support its withdrawal of recogni- tion. In that case, the General Counsel contested four of the signatures at the unfair labor practice hearing, claiming that those four employees were not in the unit at the time of the withdrawal of recognition. The of recognition that it still has majority status.12 Rather, it is the employer’s burden to show an actual loss of the union’s majority support at the time of the withdrawal of recogni- tion. The Board has recently found in two cases that in at- tempting to show a loss of a union’s majority status, an employer is not entitled to rely on signatures of employ- ees who subsequently demonstrated support for the un- ion. In Parkwood Developmental Center, 347 NLRB No. 95 (2006), a case very similar to the instant case,13 the employer, during the term of a collective-bargaining agreement, sent a letter to the union anticipatorily with- drawing recognition effective at the expiration of the contract, based on a petition signed by a majority of unit employees stating that they no longer wished to be repre- sented by the union. Subsequently, but before the expira- tion of the contract, the union presented the employer with a petition signed by a majority of unit employees expressing their desire for continued representation by the union and revoking any previous statements to the contrary. The Board found in Parkwood that the subse- quent petition precluded the employer from relying on those earlier signatures in support of its withdrawal of recognition. Similarly, in Highlands Regional Medical Center, 347 NLRB No. 120, slip op. at 4 (2006), the Board found that an employee’s “unequivocal, postpeti- tion demonstration of support for the Union precludes counting her among the opponents of the Union in de- termining whether the Union had lost majority support when the Respondent withdrew recognition.”14 Applying the principles of Parkwood and Highlands, we find that as of December 1, 2002, the operative date of the withdrawal of recognition,15 the Respondent had Board found that those four signatures could not be counted and ac- cordingly, the petition did not demonstrate a loss of majority support. Therefore, the Board found the withdrawal of recognition based on the petition to be unlawful. Similarly, in Flying Foods, 345 NLRB 101, 103 (2005), the Board found an employer’s withdrawal of recognition unlawful where the General Counsel showed at the hearing that the petition relied on by the employer to support its withdrawal of recogni- tion contained a number of invalid signatures that could not be counted. The Board disregarded those signatures and found that the employer had not shown an actual loss of the union’s majority status. 12 Member Schaumber notes that the Respondent never asked to ex- amine the Union’s petition. He does not pass on whether the outcome would have been different if the Respondent had made, and the Union had refused, such a request. 13 In its brief in support of exceptions, the Respondent relied on the judge’s decision in Parkwood and stated that “the facts are identical to the instant case.” The Board, however, reversed the judge’s decision in pertinent part. 14 Member Schaumber did not participate in Highlands Regional Medical Center and expresses no opinion as to whether the evidence there established an unequivocal postpetition demonstration of support for the union. 15 See Parkwood, supra, 347 NLRB No. 95, slip op. at 2. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 760 not demonstrated the Union’s actual loss of majority support. Thus, by that date, 12 of the Respondent’s 35 signatures had effectively been nullified by subsequent signatures on a petition unequivocally supporting contin- ued representation by the Union. Moreover, the Union had informed the Respondent prior to the withdrawal of recognition that it was in possession of evidence of con- tinued majority support that it had sent to the Board’s Regional Office on November 15, 2002. Disregarding the 12 cross-over signatures (as we did in Parkwood and Highlands), as well as the 4 signatures that were no longer valid (those of Butler, Spence, Johnson, and Hale), the Respondent has shown that as of the date of the withdrawal of recognition, 19 unit employees no longer wished to be represented by the Union. This is insufficient to meet the Respondent’s burden under Lev- itz to show an actual loss of the Union’s majority status.16 In its brief in support of exceptions, the Respondent argues that when faced with an antiunion petition con- taining the signatures of a majority of unit employees, it had no choice but to withdraw recognition or else it would have been committing an 8(a)(2) violation under the judge’s decision in Dura Art Stone, Case 31–CA– 26009. The Respondent points out that in that case, the judge opined that “Levitz left little doubt that an em- ployer, faced with knowledge that the incumbent union has lost its majority support, must withdraw recogni- tion.” However, subsequent to the filing of the Respon- dent’s brief, the Board, while affirming the judge’s 8(a)(2) finding in Dura Art, specifically did not rely on the judge’s statement quoted by the Respondent in this case. 346 NLRB 149 fn. 2 (2005). Levitz imposes no such Hobson’s choice. When an election petition is pending, an employer, faced with proof of the union’s actual loss of majority support, need not withdraw rec- ognition or face 8(a)(2) liability. Rather, Levitz created a safe harbor for employers in that situation. 333 NLRB at 726. In Dura Art, the Board adopted the judge’s finding that the Levitz safe harbor did not apply because no represen- tation petition was pending before the Board; thus, the Board found that the employer violated the Act by con- tinuing to recognize a union in the face of evidence that it had lost majority status. Citing the judge’s decision in Dura Art and the similar absence of a pending represen- tation petition here, the Respondent claims that it was faced with a “dilemma” of either continuing to recognize the Union in violation of Section 8(a)(2) or withdrawing recognition. 16 This is so, whether the unit consisted of 58 employees, as con- tended by the Respondent, or 61, as contended by the General Counsel and the Union and found by the judge. However, the Respondent’s “dilemma” could have been avoided if the Respondent had followed what Levitz characterized as the “preferred method of testing em- ployees’ support for unions”17 and filed an RM petition with the Board. Had it done so, as set forth in Levitz, the Respondent would not have been subject to 8(a)(2) liabil- ity for continuing to recognize the Union.18 Although the Respondent argues that it could not have filed an RM petition because the employees’ RD petition had been rejected as untimely, there is no merit to that assertion. Contrary to the Respondent’s contention, it could have filed an RM petition after the expiration of the contract. The previous dismissal of an earlier untimely RD petition does not preclude an employer from subsequently filing a timely RM petition. As set forth in Parkwood, 347 NLRB No. 95, slip op. at 2, the disaffection petition would have supported the filing of an RM election peti- tion with the Board under the “good-faith reasonable- uncertainty” standard announced in Levitz for such peti- tions, even if it was not sufficient to support a with- drawal of recognition. See Levitz, 333 NLRB at 727– 729. The Respondent, recognizing that it could not lawfully withdraw recognition on October 30, 2002, instead an- nounced on that date that it was withdrawing recognition effective December 1, after the contract expired.19 But, as in Parkwood, the Respondent then ignored contradictory evidence of possible union majority support that was presented later, and instead followed through on its an- nounced intention to withdraw recognition on December 1. It acted at its peril by doing so because, as explained above, the Respondent’s action would be lawful only if, as of December 1, the Union had actually lost majority support. Levitz, 333 NLRB at 725. As set forth above, the 17 Levitz, supra, 333 NLRB at 727. 18 Levitz, supra, 333 NLRB at 726 fn. 52. There the Board stated that an employer who files an RM petition, or is presented with an RD petition or a petition for an RC election in which the incumbent union will appear on the ballot, “will not violate Sec. 8(a)(2) if it continues to recognize the incumbent union.” 19 As in Parkwood, the Respondent’s October 30 announcement was lawful. In Parkwood, 347 NLRB No. 95, slip op. 2 fn. 10, the Board stated: Under the “anticipatory 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 ne- gotiate 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 “withdrawal of recognition [is] as to—and only as to—negotiating a successor con- tract to the existing agreement.” Abbey Medical, 264 NLRB at 969 [264 NLRB 969 (1982), enfd. mem. 709 F.2d 1514 (9th Cir. 1983)]. 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. HQM OF BAYSIDE, LLC 761 December 1 withdrawal of recognition was unlawful because, in light of the crossover signatures obtained before December 1, the Respondent was unable to meet its burden of showing an actual loss of majority support on December 1. We stated in Parkwood that we are not seeking to obliterate the ability of employers to engage in anticipa- tory withdrawals of recognition. 347 NLRB No. 95, slip op. at 3. We observed that an employer “can still follow through on its anticipatory withdrawal of recognition if it can prove actual loss of majority support on the date that recognition is subsequently withdrawn.” Id. Here, we find, as explained above, that the Respondent’s evidence of loss of majority support did not survive the challenge by the General Counsel and the Union, and that therefore the Respondent did not meet its burden of showing actual loss of majority support on the date of the withdrawal of recognition. Accordingly, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union on De- cember 1, 2002. REMEDY Having found that the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union, we shall order the Respondent to cease and desist from engaging in such conduct and to bargain with the Union in the bargaining unit described below, with re- spect to wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document. The judge recommended an affirmative bargaining or- der to remedy the Respondent’s unlawful withdrawal of recognition, but did not justify the imposition of such an order as required by the United States Court of Appeals for the District of Columbia Circuit. Nevertheless, for the reasons set forth below, we agree with the judge that an affirmative bargaining order is warranted on the facts of this case. The Board has previously held that an affirmative bar- gaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective- bargaining representative of an appropriate unit of em- ployees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justi- fied by a reasoned analysis that includes an explicit bal- ancing of three considerations: (1) the employees’ Sec- tion 7 rights; (2) whether other purposes of the Act over- ride the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” 209 F.3d at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.20 (1) As the Board stated in Parkwood,21 an affirmative bargaining order in this case vindicates the Section 7 rights of the unit employees who were denied the bene- fits of collective bargaining by the Respondent’s unlaw- ful withdrawal of recognition and resulting refusal to bargain with the Union for a successor collective- bargaining agreement. The Respondent withdrew recog- nition from the Union without a showing that the Union had actually lost majority support following the expira- tion of the parties’ collective-bargaining agreement. The expiration of that agreement, however, did not extinguish either the employees’ right to have the Union represent them in their relationship with the Respondent or the Respondent’s obligation to recognize and bargain with its employees’ chosen bargaining representative. The Respondent’s unlawful conduct demonstrated a disregard for the employees’ Section 7 right to elect union repre- sentation, and the Respondent’s conduct would tend to unfairly undermine continuing support for the Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Un- ion’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of em- ployees who may oppose continued union representation as the order is not of indefinite duration but for a reason- able period of time sufficient to allow the good faith bar- gaining that the Respondent’s unlawful withdrawal of recognition cut short. 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 employ- ees’ Section 7 right to union representation is vindicated. 20 Member Schaumber 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 United States Court of Appeals for the District of Columbia Circuit that a case-by-case analysis is required to determine if the rem- edy is appropriate. Saginaw Control & Engineering, 339 NLRB 541, 546 fn. 6 (2003). He recognizes, however, that the view expressed in Caterair International, supra, represents extant Board law. Flying Foods, 345 NLRB 101, 110 fn. 23 (2005). 21 347 NLRB No. 95, slip op. at 3. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762 It will also give employees an opportunity to fairly assess the Union’s effectiveness as a bargaining representative and determine whether continued representation by the Union is in their best interests. (2) An affirmative bargaining order also serves the Act’s policies of fostering meaningful collective bargain- ing and industrial peace. It removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union, and it ensures that the Union will not be pressured to achieve immediate results at the bar- gaining table—results that might not be in the employ- ees’ best interests. It fosters industrial peace by reinstat- ing the Union to its rightful position as the bargaining representative chosen by a majority of the employees. Also, as mentioned, 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 effects of the Respondent’s unlaw- ful withdrawal of recognition and refusal to bargain. (3) As an alternative remedy, a cease-and-desist order, alone, would be inadequate to remedy the Respondent’s withdrawal of recognition and refusal to bargain with the Union because it would allow another challenge to the Union’s majority status before the employees had a rea- sonable time to regroup and bargain with the Respondent through their chosen representative in an effort to reach a successor collective-bargaining agreement. Such a result would be particularly unfair where the Respondent’s unlawful refusal to recognize and bargain with the Union has continued since December 2, 2002, and has likely undermined employee support for continued union repre- sentation. Allowing another challenge to the Union’s majority status without a reasonable period for bargain- ing also would be unfair in light of the fact that the litiga- tion 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 decerti- fication petition to be filed immediately might very well allow the Respondent 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 representation.22 For all the foregoing reasons, we find that an affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the violation in this case. 22 Parkwood, supra, 347 NLRB No. 95, slip op. at 4; see also Goya Foods of Florida, 347 NLRB No. 103, slip op. at 6 (2006); Smoke House Restaurant, 347 NLRB No. 16, slip op. at 2–3 (2006). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below, and orders that the Respondent, HQM of Bayside, LLC, Lexington Park, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the Re- spondent’s employees in the following appropriate unit with respect to wages, hours, and other terms and condi- tions of employment and, if an agreement is reached, embody it in a signed document: All full-time and regular part-time hourly employees employed by the Respondent at its Bayside Care Center Facility; but excluding Registered Nurses, Licensed Practitioner Nurses, business office clerical employees, managers, guards, and supervisors as defined by the Act.” 2. Substitute the attached notice for that of the admin- istrative 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 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. WE WILL NOT refuse to recognize and bargain in good faith with United Food and Commercial Workers, Local 400 (the Union) as the exclusive collective-bargaining representative of the employees in the appropriate unit described below. 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 HQM OF BAYSIDE, LLC 763 our employees in the following appropriate 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. All full-time and regular part-time hourly employees employed by the Respondent at its Bayside Care Center Facility; but excluding Registered Nurses, Licensed Practitioner Nurses, business office clerical employees, managers, guards, and supervisors as defined by the Act. HQM OF BAYSIDE, LLC John S. Ferrer, Esq., for the General Counsel. Carla J. Gunnin, Esq. (Constangy, Brooks & Smith, L.L.C.), of Atlanta, Georgia, for the Respondent. Mark H. Reynolds, Esq. (Butsavage & Associates, P.C.), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge. This case was tried on October 14, 2003, in Washington, D.C. upon a complaint, dated June 30, 2003, as amended on September 9, 2003, alleging that the Respondent, HQM of Bayside, LLC (alleged in the complaint as Home Quality Management, Inc. d/b/a Bayside Center), violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed a timely answer, admitting the jurisdictional elements of the complaint and denying that the Company violated the Act. Following a non-Board settlement of two allegations in the complaint, the sole issue is whether the Respondent withdrew its recognition from the Union in violation of Section 8(a)(1) and (5) of the Act. On the entire record,1 including my observation of the de- meanor of the witnesses and after considering the briefs filed by the General Counsel, the Charging Party, and the Respon- dent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, HQM of Bayside, LLC, is a Tennessee corporation, with an office and place of business in Lexington Park, Maryland, and is engaged in the nursing home business. With gross revenues in excess of $100,00 and purchases and receipts of goods valued in excess of $5000 directly from points outside the State of Maryland, the Respondent is admit- tedly an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union, United Food and Commercial Workers, Local 400, is admittedly a labor organization within the meaning of Section 2(11) of the Act. The Union has been certified as the exclusive, collective- bargaining representative of the following employees of Re- 1 The record consists of a comprehensive stipulation of the relevant facts, as well as the testimony of one witness (See Jt. Exh. 1). spondent, herein called the unit: All full-time and regular part-time hourly employees em- ployed by the Employer at its Bayside Care Center Facility; but excluding Registered Nurses, Licensed Practitioner Nurses, business office clerical employees, managers, guards and supervisors as defined by the Act. II. FACTS In an Order, dated August 15, 2001, involving the same Re- spondent (see Cases 5–CA–28438, 5–CA–29027, and 5–CA– 29187), the Board adopted the administrative law judge’s deci- sion, dated July 5, 2001, finding that the Respondent had vio- lated Section 8(a)(1) and (5) of the Act, and ordered the Com- pany to bargain in good faith (Jt. Exh. 1, attachments B, C). Following negotiations, the parties executed a collective- bargaining agreement, effective from December 1, 2001, until November 30, 2002 (Jt. Exh. 1, attachment D). In September 2002, the Respondent’s employees circulated a petition to decertify the Union. The petition was entitled, “We the employees of Bayside Care Center do not [sic] no longer want to be represented by UFCW, Local 400.” Barbara Court- ney, an employee of the Respondent, filed the petition with the NLRB on September 30, 2002 (Jt. Exh. 1, attachments E, F). The Board dismissed the petition as untimely (Jt. Exh. 1). On October 30, 2002, the Respondent notified the Union in writing that it would withdraw recognition of the Union, effec- tive December 1, 2002. The letter, dated October 30, 2002, states that the petition was signed by “a clear majority” of the employees (Jt. Exh. 1, attachment G). In early November 2002, another petition entitled, “We the following employees of Bayside Care Center, Lexington Park, Maryland, DO NOT wish to withdraw recognition and or repre- sentation of United Food and Commercial Workers Local 400,” was circulated among the Respondent’s employees (Jt. Exh. 1, attachment H). On November 26, 2002, the Union notified the Respondent by letter that it had a counter petition (Union’s petition) containing a majority of the employees’ signatures, stating that they wanted to continue to be represented by the Union (Jt. Exh. 1, attachment I). The Union did not present this petition to the Respondent at that time, but the Union presented it to the Board’s Regional Office on November 15, 2002. On December 1, 2002, the Respondent withdrew its recogni- tion from the Union as the exclusive, collective-bargaining representative of the unit employees. The employees’ petition provided the basis for the Respondent’s decision to withdraw recognition from the Union. Since December 1, 2002, Respon- dent has not bargained with the Union as the representative of the unit employees. The Union’s petition contained 34 signatures. But two sig- natures on the petition belonged to Sharon Chase and Tracy Epps, who, as RNs, were ineligible for the bargaining unit. Pearl Day and Della Smith, who also signed the petition, were not employed on the date of Respondent’s withdrawal of rec- ognition. Lastly, one employee, Kelly Beals, signed the peti- tion twice. The Respondent’s petition contained 34 signatures on Octo- ber 30, 2002, when the Respondent informed the Union that it DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764 was withdrawing recognition from the Union. The following three employees who signed Respondent’s petition were not employed on the date the Respondent withdrew recognition: Ebony Butler, Latoya Spence, and Angelia Johnson. The following 13 unit employees signed both, the Respon- dent’s petition and the Union’s petition: Brenda Braden, Daisy Bush, Patricia Butler, Mary Dorsey, Tisha Ducket, Tina Hale, Victoria Hebb, Grace Jones, Joseph Makle, Mary Medley, Shelisha Miles, Michelle Somerville, and Tamy Stephens. Unit employee Tina Hale was terminated by the Respondent on or about October 31, 2002. Hale’s discharge was the subject of a grievance that was resolved between the parties in July 2003. The settlement included backpay for Hale but no rein- statement. Samuel Quade was hired by the Respondent on December 1, 2002, as a dietary aide, a position that is in the bargaining unit. On November 8, 2002, unit employee Danielle Hawkins requested to go on PRN status, which means she would work on an “as needed” basis. Hawkins did not work between November 8, 2002, and January 2, 2003, when she was terminated by the Respondent. The status of employee, Thomas Gray, the only witness in this case, is contested, because he was on medical leave from August 25, 2002, until January 9, 2003. On December 1, 2002, the date of withdrawal of recognition, at least 58 employees who were listed on an attachment to the stipulation, were in the bargaining unit (Jt. Exh. 1, attachment J). Analysis Whether the Respondent could lawfully withdraw recogni- tion from the Union based upon the decertification petition, is an issue governed by Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). There, the Board held that an employer may “unilaterally withdraw recognition, only on a showing that the union has, in fact, lost the support of a majority of the em- ployees in the bargaining unit” (Id. at 725). The former stan- dard is no longer valid, namely “that an employer may lawfully withdraw recognition on the basis of a good faith doubt (uncer- tainty or disbelief) as to the union’s continued majority status.” Id. at 725. Here, the Respondent withdrew its recognition of the Union on December 1, 2002, at the expiration of the collective- bargaining agreement, even though the Union had informed the Company on November 26, 2002, that it had a petition in sup- port of the Union signed by a majority of the employees. In this regard the Board decided as follows: We emphasize that an employer with objective evi- dence that the union has lost majority support—for exam- ple, 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 labor practice proceeding, the employer will have to pro- vide by a preponderance of the evidence that the union had, in fact, lost majority support at the time the employer withdrew recognition. If it fails to do so, it will not have rebutted the presumption of majority status, and the with- drawal of recognition will violate Section 8(a)(5). Ibid. The stipulated record here shows that the Respondent with- drew recognition on December 1, 2002—1 day after the expira- tion of the collective-bargaining agreement—in reliance on an antiunion petition circulated among the employees in October 2002. This document contains 34 signatures, but 4 of them were invalid. As stipulated, three signatories (Ebony Butler, Latoya Spence, and Angela Johnson) were not employed at the facility on December 1, 2002, and the fourth, Tina Hale, was terminated in about October 31, 2002, and subsequently not reinstated. With the addition of Barbara Courtney, an employee who had signed the formal decertification petition, filed with the Board on September 30, 2002, the Respondent had 31 sig- natures from unit employees on its petition at the time it with- drew recognition. The unit of employees consisted of at least 58 employees. The parties stipulated that the list of employees containing 58 names were in the bargaining unit. The General Counsel and the Charging Party argue that three employees (Thomas Gray, Danielle Hawkins, and Samuel Quade) should be added to that list. In this regard, the record shows that employee Samuel Quade was hired as a dietary aide on December 1, 2002. As stipulated, the position is in the bargaining unit. The Respon- dent, however, argues that the bargaining unit no longer existed on that date, because the collective-bargaining agreement had expired, and that this employee should not be counted as a unit member. The Respondent’s argument is difficult to accept, because it would assume that the entire unit had been eliminated by the Respondent’s action in disavowing the Union’s representative status. Clearly, the unit continued to exist in its entirety on De- cember 1, 2002, when Quade was hired. His position was stipulated to be in the bargaining unit. I, therefore, find that it was augmented by the Respondent’s hiring decision. With respect to Danielle Hawkins, the stipulated record shows that she was a unit employee who, per her request, was placed on PRN status which means that she would work on an “as needed” basis. She did not work between November 8, 2002, and January 2, 2003, when she was terminated. Accord- ing to the Respondent, she did not have regularly scheduled hours and did not work after November 8, 2002, and she can, therefore, not be considered as a “regular part time hourly em- ployee” to be included in the unit. The General Counsel prop- erly points out that Hawkins’ position was similar to that of an “on-call” employee who may have a continuing interest in wages, hours, and working conditions as other unit employees and still be considered to be part of the unit. In any case, Haw- kins was clearly included in the bargaining unit prior to No- vember 8, 2002, and I find that the change in her job status did not automatically exclude her from the unit until the termina- tion of employment. Finally, the status of Thomas Gray is at issue. The record shows that Gray was a unit employee from September 2000, until he resigned on January 9, 2003. Following surgery on his neck on August 25, 2002, Gray was on extended leave from his job. For about 10 or 11 days he qualified for sick leave, he was then on Family Medical Leave (FMLA) and finally long-term disability. Based on the advice of his physician, Gray resigned HQM OF BAYSIDE, LLC 765 from his employment effective January 9, 2003. In the mean- time, while he was not working, he kept in touch with his em- ployer. For example, in December 2002, he visited the facility and spoke with his supervisor, Kim Ferguson, and others and told them that he planned to return to work. Gray denied telling anybody that he had no intentions to return to work. The record shows that the Respondent never notified Gray during his ab- sence that he had been terminated, nor did he receive any documents, such as a COBRA notice to maintain his insurance, which would have indicated that he had been terminated prior to his resignation on January 9, 2003. The Respondent argues that Gray had been terminated, be- cause he had exhausted his leave at the expiration of 12 weeks and without a request for extended leave, Gray would have been terminated. The Respondent’s argument seems plausible, except that the record does not contain any evidence showing that such an action had ever been taken or been communicated to this employee. Indeed, when Gray delivered his resignation to Respondent’s management no one informed him that he had already been terminated. With the additions of Gray, Quade, and Hawkins to the 58 stipulated number of unit employees, it is clear that the unit consisted of 61 employees. Considering the Respondent’s peti- tion of 31 employees, it would appear that the Respondent had indeed demonstrated a majority of employees who opposed the Union. However, dispositive of the issue here is the union petition containing 28 or 29 signatures (Jt. Exh.1, attachment H). As stipulated, 13 employees signed both the Respondent’s petition and the Union’s petition. The Union’s petition was signed in November 2002, about 1 month after the decertification peti- tion, clearly manifesting that the signatories had changed their sentiments about the Union. Without there being a dispute as to the authenticity of the re- spective signatures on either petition, the record is clear that the Respondent could not have relied upon the 13 employees who had signed both petitions. Without consideration of the 13 cross-over petitions, the Respondent lacked the objective evi- dence that a majority of its employees no longer supported the Union. See Highlands Hospital Corp., Case 9–CA–39186 (Jan. 9, 2002); Rescare West Virginia, Case 9–CA–38771 (Feb. 6, 2003). The Respondent argues that it faced a dilemma, because of the Union’s failure to attach its petition to the November 26, 2002 letter, thereby depriving it of a chance of verifying its own evidence. Nevertheless, the record shows that the Re- spondent acted precipitously, particularly under the circum- stances here, where it was informed that a counter petition ex- isted which had been signed by its employees. The Respondent should also have realized that its petition did not reveal an over- whelming majority of employees favoring decertification, be- cause several signatures came from employees who were no longer employed at the time. Relying on a razor-thin majority and acting so soon after the contract had expired, placed the Respondent in a position which it now realized could have been avoided: “Had the Respondent been afforded an opportunity to review the Union’s Petition, then a different result might have been reached” (P. Br. p. 10). Clearly, the Respondent acted at its peril, because the record shows that it relied on about 12 or 13 signatures from employees who had changed their mind, so that the employer’s petition had no more than 18 valid signa- tures, an insufficient number to support its withdrawal of rec- ognition of the Union. CONCLUSIONS OF LAW 1. HQM of Bayside, LLC is an employer engaged in com- merce, within the meaning of Section 2(2), (6), and (7) of the Act, and a health care facility within the meaning of Section 2(14) of the Act. 2. United Food and Commercial Workers Union, Local 400, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union has been the exclusive representative of all employees in the following bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act: All full-time and regular part-time hourly employees em- ployed by the Employer at its Bayside Care Center Facility; but excluding Registered Nurses, Licensed Practitioner Nurses, business office clerical employees, managers, guards and supervisors as defined by the Act. 4. By withdrawing recognition of and refusing to bargain with the Union on December 1, 2002, and thereafter, as the exclusive bargaining representative of the unit employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I issue the following recommended2 ORDER The Respondent, HQM of Bayside, LLC, Lexington Park, Maryland, its officers, agents, agents, successors, and assigns, shall 1. Cease and desist from (a) Withdrawing recognition of the Union and refusing to bargain collectively and in good faith with the Union, in the appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) On request, bargain in good faith with the Union as the exclusive bargaining representative of its employees in the above-described unit, with respect to wages, hours, and other terms and conditions of employment and if an understanding is reached, embody the understanding in a signed agreement. 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 766 (b) Within 14 days after service by the Region, post at its fa- cility in Lexington Park, Maryland, copies of the attached no- tice marked “Appendix.”3 Copies of the notice, on forms pro- vided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. 3 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.” 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 tendency of these pro- ceedings the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 1, 2002. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official, on a form provided by the Region, attesting to the steps that the Respondent has taken to comply.