Eden Gardens Nursing Home

National Labor Relations Board - Board Decisions

May 27, 2003

339 N.L.R.B. 71 (N.L.R.B. 2003)

EDEN GARDENS NURSING HOME 71
Tri-State Health Service, Inc. d/b/a Eden Gardens
Nursing Home and Service Employees Interna-
tional Union, Local 100, AFL–CIO. Case 15–
CA–15903
May 27, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On May 4, 2001, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
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,1 and conclusions 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 and refusing to bargain with the Union as the exclu-
sive bargaining representative of the Respondent’s nurs-
ing home employees in the bargaining unit. The judge
further found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to fur-
nish the Union with requested information necessary for
and relevant to the Union’s performance of its duties. For
the reasons discussed below, we affirm the judge’s find-
ings, with the exception of the withdrawal-of-recognition
finding.3
The facts are set forth in detail in the judge’s decision.
In brief, the Union was certified as the representative of
the employees of the Respondent’s predecessor, Camelot
Care, in 1996. In 1997, Camelot entered into a collective-
bargaining agreement with the Union. On March 1,
2000,4 Respondent Eden Gardens Nursing Home took
over the operation of the nursing home. On August 2

1 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.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Corp., 325 NLRB 17 (1997). In addition, we shall delete the
records-preservation provision from the recommended Order, because
the remedy does not include an award of backpay. Finally, we shall
substitute a new notice in accordance with our recent decision in Ishi-
kawa Gasket America, 337 NLRB 175 (2001).
3 See fn. 6, infra.
4 All dates are in 2000 unless otherwise indicated.
and 21, the Union requested the Respondent to bargain
and to furnish information. The Respondent did not re-
spond to the Union’s requests.
The Respondent admitted that it was a successor em-
ployer pursuant to Burns Security Services, 406 U.S. 272
(1972). Accordingly, the judge found that the Respon-
dent violated Section 8(a)(5) and (1) by withdrawing
recognition from and refusing to bargain with the Union,
and by refusing to supply the Union with requested in-
formation. In reaching this conclusion, the judge rejected
the Respondent’s contention that it had a good-faith rea-
sonable uncertainty that the Union retained the support of
a majority of the unit employees under Allentown Mack
Sales & Service v. NLRB, 522 U.S. 359 (1998).5
With one exception, we agree with the judge’s find-
ings.6 In addition, we agree with the judge that an af-
firmative bargaining order is warranted in this case.
I. ALLENTOWN MACK “GOOD-FAITH UNCERTAINTY”
STANDARD
The Respondent relies on several factors allegedly
supporting its withdrawal of recognition from the Union
under Allentown Mack. These factors include: (1) the
drop in the number of employees who voted in a second
union election in August 1996; (2) the drop in the num-
ber of employees authorizing dues checkoffs; (3) the
inactivity of the Union at the nursing home; (4) state-
ments by various employees to Assistant Administrator
Suzanne Price expressing their desire not to be repre-
5 While this case was pending, the Board issued Levitz Furniture Co.
of the Pacific, 333 NLRB 717 (2001). In Levitz, the Board overruled
Celanese Corp., 95 NLRB 664 (1951), and its progeny insofar as they
permitted an employer to withdraw recognition from an incumbent
union on the basis of a good-faith reasonable uncertainty of the union’s
continued majority status. The Levitz Board held that “an employer
may unilaterally withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority of the
bargaining unit employees.” Id. at 717. However, the Board also held
that its analysis and conclusions would only be applied prospectively,
and that all pending cases would be decided under existing law as ex-
plicated by the Supreme Court in Allentown Mack. Thus, the judge has
correctly cited and applied the Allentown Mack standard in this case.
Member Schaumber did not participate in Levitz and expresses no view
as to whether it was correctly decided.
6 Although the judge found that the Respondent withdrew recogni-
tion from the Union on February 29 and failed and refused to recognize
the Union beginning on about July 31, we find that the evidence only
shows that the Respondent refused to recognize and bargain with the
Union as of August 2, the date the Union first delivered its bargaining
demands to the Respondent, which were ignored. The evidence does
not establish that the Union had previously demanded, or that the Re-
spondent had previously granted, recognition to the Union as bargain-
ing representative. A successor employer’s bargaining obligation at-
taches on the date it receives the bargaining demand. See Northern
Montana Health Care, 324 NLRB 752 fn. 4 (1997), enfd. in relevant
part 178 F.3d 1089 (9th Cir. 1999); USG Acoustical Products, 286
NLRB 1, 11 (1987).
339 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72
sented by the Union; and (5) Supervisor Wanda Smith’s
testimony that she overheard three nurses aides express-
ing their dissatisfaction with the Union.
The second election in August 1996. We agree with
the judge that the only probative aspect of that election is
the fact that the Union won it. Further, even assuming
arguendo that the drop in the number of employees who
voted in that election reflected an overall loss of em-
ployee support for the Union, we find that the August
1996 election was too remote in time from the Respon-
dent’s August 2000 refusal to recognize the Union. See
generally Hospital Metropolitano, 334 NLRB 555, 556
(2001) (stale evidence is not a reliable indicator of em-
ployees’ union sentiments).
Decline in dues checkoff. Employee cancellations of
dues-checkoff authorizations may be attributable to many
factors other than opposition to a union. As the Board
observed in Hospital Metropolitano, supra, “employees
may prefer to pay their dues only at convenient times or
in person, or may even be ‘free riders’ who desire and
accept union representation without joining the union
and paying dues.” Thus, absent some further evidence
indicating that employees canceled their dues deduction
because they no longer supported the Union, we agree
with the judge’s finding that this factor did not support a
good-faith uncertainty of the Union’s majority status.7
Lack of union activity. The judge found that the evi-
dence did not support the Respondent’s assertion that the
facility had been devoid of union activity since mid-
1999. We adopt the judge’s findings.
Alleged employee statements to Price. The judge ef-
fectively discredited Price’s testimony that the employ-
ees told her they wanted to discontinue their dues-
checkoff authorizations because they no longer wanted to
be represented by the Union. Accordingly, we agree with
the judge that this factor also does not support the
Respondent’s position.

Employee statements overheard by Smith. The judge
found that the overheard statements of three employees
expressing their dissatisfaction with the Union might
well engender some uncertainty regarding employee
support for the Union. However, the judge found that
this evidence by itself was insufficient under Allentown
Mack to establish a good-faith uncertainty of the Union’s
continued majority status in a bargaining unit which,

7 We do not rely, however, on the judge’s speculation that employ-
ees canceled their dues deductions because of financial distress created
by the failure of the Respondent’s predecessor to give hourly wage
increases required by its collective-bargaining agreement with the
Union.
according to the Respondent, at all times consisted of at
least 30 employees. We adopt the judge’s findings.8
II. AFFIRMATIVE BARGAINING ORDER
Finally, we also agree with the judge, for the reasons
fully set forth in Caterair International, 322 NLRB 64
(1996), that an affirmative bargaining order is warranted
in this case as a remedy for the Respondent’s unlawful
refusal to bargain with the Union. We adhere to the
view, reaffirmed by the Board in that case, that an af-
firmative bargaining 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 employees.” Id. at 68.9
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 imposition 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, the court summarized its
requirement that an affirmative bargaining order “must
be justified by a reasoned analysis that includes an ex-
plicit balancing of three considerations: (1) the employ-
ees’ Section 7 rights; (2) whether other purposes of the
Act override the rights of employees to choose their bar-
gaining representatives; 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 re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
would require and find that a balancing of the three fac-
tors warrant an affirmative bargaining order.10
8 We do not, however, adopt or rely on the judge’s additional find-
ings regarding the predecessor employer’s failure to adhere to the terms
of the contract’s wage provision, and the impact this violation would
have on any employee disaffection. As the judge acknowledged, there
is no complaint allegation in this proceeding that the predecessor’s
conduct was unlawful.
9 For the reasons more fully set forth in fn. 10, infra, Member
Schaumber does not agree with the view expressed in Caterair Interna-
tional, supra, that an affirmative bargaining order is “the traditional,
appropriate remedy for an 8(a)(5) violation.” However, he agrees that a
bargaining order is warranted on the facts of this case.
10 Member Schaumber believes the Board should revisit and recon-
sider its policy of imposing affirmative bargaining orders in all cases
involving 8(a)(5) refusal-to-bargain violations. He agrees with the
District of Columbia Circuit Court of Appeals that before making the
decision to issue an order requiring the employer to cease and desist
from refusing to bargain together with an affirmative bargaining order
which precludes valid employee decertification efforts for at least the
term of the order, the Board should engage in a careful analysis of the
considerations identified by the court of appeals in Vincent Industrial
Plastics, supra. He is of the view that whether a bargaining order is the
EDEN GARDENS NURSING HOME 73
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s refusal to recognize and bargain with the Un-
ion. 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 em-
ployees who may oppose continued union representation
because the duration of the order is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tion. As noted, the Respondent never recognized the
Union and never suggested it would bargain with the
Union. This fact weighs more heavily in favor of the
Section 7 rights of former Camelot employees, whose
rights were infringed upon by the Respondent’s refusal to
recognize the Union upon its demand.
(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 further discouraging support for the Union. It also
ensures that the Union will not be pressured by the Re-
spondent’s withdrawal of recognition to achieve immedi-
ate results at the bargaining table following the Board’s
resolution of its unfair labor practice charges and issu-
ance of a cease-and-desist order.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent has afforded the employees a reasonable time to
regroup and bargain through their representative in an
effort to reach a collective-bargaining agreement. Such a
result would be particularly unfair in circumstances such
as those here, where the Respondent’s unfair labor prac-
tice was of a continuing nature and was likely to have a
continuing effect, thereby tainting employee disaffection
from the Union arising during that period or immediately
thereafter. 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.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case.

“appropriate” remedy will depend on the facts of each case. In some
cases a cease-and-desist order alone may be adequate while in others a
cease-and-desist order coupled with special remedies may remedy the
violation and return the parties to the status quo existing before the
violation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tri-State
Health Service, Inc. d/b/a Eden Gardens Nursing Home,
Shreveport, Louisiana, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraphs 1(a) and (b)
and reletter the following paragraphs.
“(a) Failing and refusing to recognize and bargain with
the Charging Party as the exclusive representative of the
employees in the following unit, which is appropriate for
collective bargaining:

All full-time, part-time and relief employees employed
by the Respondent at its Shreveport, Louisiana facility
who work as nursing assistants, laundry, housekeep-
ing/maintenance, food service employees, EXCLUD-
ING all other employees, licensed professionals,
guards, office clerical employees, food service supervi-
sors and supervisors as defined by the Act.”

2. Delete paragraph 2(c) and reletter the remaining
paragraphs.
3. Substitute the following for relettered paragraph
2(c).
“(c) Within 14 days after service by the Region, post at
its facility in Shreveport, Louisiana, and at all other
places where notices customarily are posted, copies of
the attached notice marked ‘Appendix B.’3 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 2,
2000.”
4. Substitute the attached notice for that of the admin-
istrative law judge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74
APPENDIX B
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 fail and refuse to recognize and bargain
with Service Employees International Union, Local 100,
AFL–CIO as the exclusive representative of our employ-
ees in the following unit appropriate for collective bar-
gaining:

All full–time, part–time and relief employees employed
by Respondent at its Shreveport, Louisiana facility who
work as nursing assistants, laundry, housekeep-
ing/maintenance, food service employees,
EXCLUDING all other employees, licensed profes-
sionals, guards, office clerical employees, food service
supervisors and supervisors as defined by the Act.

WE WILL NOT fail and refuse to provide Service Em-
ployees International Union, Local 100, AFL–CIO with
information it requested which is necessary for, and rele-
vant to, the performance of its duties as exclusive repre-
sentative of the employees in the unit described above.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL, on request, recognize and bargain with Ser-
vice Employees International Union, Local 100, AFL–
CIO as the exclusive representative of our employees in
the unit described above.
WE WILL furnish to Services Employees International
Union, Local 100, AFL–CIO the following information it
requested, which is necessary for and relevant to its per-
formance of its duties as the exclusive representative of
our employees in the unit described above: A list of all
employees at our facility, including the employees’
names, job titles, shifts, dates of hire, wage rates, ad-
dresses, and telephone numbers.

TRI–STATE HEALTH SERVICE, INC.
D/B/A EDEN GARDENS NURSING HOME

Kevin McClue, Esq., for the General Counsel.
Price Barker, Esq. (Cook, Yancey, King & Galloway), of
Shreveport, Louisiana, for the Respondent.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. On April 2,
2001, I heard this case in Shreveport, Louisiana. After each
side had rested, counsel presented oral argument and on April
3, 2001, I issued a bench decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations, setting
forth findings of fact. In accordance with Section 102.45 of the
Rules and Regulations, I certify the accuracy of, and attach
hereto as “Appendix A,” the portion of the transcript containing
this decision.1 The conclusions of law, remedy, recommended
Order, and notice provisions are set forth below.
1. The Respondent, Tri–State Health Service, Inc. d/b/a Eden
Gardens Nursing Home, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Service Employees International Un-
ion, Local 100, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All full–time, part–time and relief employees employed by
Respondent at its Shreveport, Louisiana facility who work as
nursing assistants, laundry, housekeeping/maintenance, food
service employees, EXCLUDING all other employees, li-
censed professionals, guards, office clerical employees, food
service supervisors and supervisors as defined by the Act.

4. At all times since February 29, 2000, based on Section
9(a) of the Act, the Charging Party has been the exclusive bar-
gaining representative of Respondent’s employees in the unit
described in paragraph 3, above.
5. On February 29, 2000, Respondent violated Section
8(a)(1) and (5) of the Act by withdrawing recognition from the
Charging Party and refusing to bargain with it as the exclusive
bargaining representative of the bargaining unit described in
paragraph 3, above.
6. Beginning on about July 31, 2000, and continuing thereaf-
ter, Respondent has violated Section 8(a)(1) and (5) of the Act
by failing and refusing to recognize and bargain with the
Charging Party as the exclusive representative of the bargaining
unit described in paragraph 3, above.

1 The bench decision appears in uncorrected form at pp. 141 through
161 of the transcript [omitted from publication]. The final version,
after correction of oral and transcriptional errors, is attached as appen-
dix A to this certification.
EDEN GARDENS NURSING HOME 75
7. Since about July 31, 2000, Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by failing and refusing to furnish
the Charging Party with requested information, described be-
low, necessary for and relevant to the Charging Party’s per-
formance of its duties as the exclusive collective-bargaining
representative of the bargaining unit described in paragraph 3,
above The information requested by the Charging Party is as
follows: A list of all employees at the Respondent’s facility,
including the employees’ names, job titles, shifts, dates of hire,
wage rates, addresses, and telephone numbers.
8. The unfair labor practices described above affect com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act, including recognizing and bargaining with
the Charging Party as the exclusive representative of the em-
ployees in the unit described above, furnishing to the Charging
Party the requested information, which is necessary for and
relevant to the Charging Party’s performance of its duties as
exclusive bargaining representative, and posting the notice to
employees attached as appendix B.
On these findings of fact and conclusions of law and on the
entire record in this case, I make the following recommended2
ORDER
The Respondent, Tri–State Health Service, Inc. d/b/a Eden
Gardens Nursing Home, Shreveport, Louisiana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from the Charging Party as the
exclusive representative of the employees in the following unit,
which is appropriate for collective bargaining:

All full–time, part–time and relief employees employed by
Respondent at its Shreveport, Louisiana facility who work as
nursing assistants, laundry, housekeeping/maintenance, food
service employees, EXCLUDING all other employees, li-
censed professionals, guards, office clerical employees, food
service supervisors and supervisors as defined by the Act.

(b) Failing and refusing to bargain with the Charging Party
as the exclusive representative of the employees in the unit
described in paragraph 1(a), above.
(c) Failing to furnish information requested by the Charging
Party which is necessary for and relevant to the Charging
Party’s performance of its duties as the exclusive bargaining
representative.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, recognize and bargain with the Charging
Party as the exclusive representative of the employees in the
unit described above in subparagraph 1(a).
(b) Furnish the following information, requested by the
Charging Party, which is necessary for and relevant to the
Charging Party’s performance of its duties as the exclusive
bargaining representative: A list of all employees at the Re-
spondent’s facility, including the employees’ names, job titles,
shifts, dates of hire, wage rates, addresses, and telephone num-
bers.
(c) Preserve and, within 14 days of request, make available
to the Board or its agents for examination and copying, all re-
cords necessary to determine that the terms of this Order have
been complied with.
(d) Within 14 days after service by the Region, post at its fa-
cility in Shreveport, Louisiana, and at all other places where
notices customarily are posted, copies of the attached notice
marked “Appendix B.”3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 16, after being
signed by Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees customarily are posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material.
(e) 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.
APPENDIX A
This is a bench decision in the case of Tri–State Health Service,
Inc. d/b/a Eden Gardens Nursing Home, which I will call the “Re-
spondent,” and Service Employees International Union, Local
100, AFL–CIO, which, I will call the “Charging Party” or the
“Union.” The case number is 15–CA–15903.
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. I find that
the Government has proven that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to recognize and
bargain with the Charging Party as the exclusive representative of
its employees in a unit appropriate for collective bargaining. Fur-
ther, I find that Respondent has failed and refused to furnish the
Charging Party with requested information which is relevant to
the Union’s performance of its duties as the exclusive bargaining
representative.
This case began on August 23, 2000, when the Charging
Party filed its initial charge in this proceeding. On February 23,
2001, after investigation of the charge, the Regional Director
for Region 15 of the National Labor Relations Board issued a
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76
complaint and notice of hearing, which I will call the “com-
plaint.” In issuing this complaint, the Regional Director acted
on behalf of the General Counsel of the Board, whom I will
refer to as the “General Counsel” or as the “Government.”
Respondent filed a timely answer to the complaint, which I will
call the “answer.” Hearing in this matter opened before me on
April 2, 2001, in Shreveport, Louisiana. After both sides had
rested, counsel presented oral argument. Today, April 3, 2001, I
am issuing this bench decision.
In its answer, Respondent admitted the allegations in complaint
paragraphs 1(a) and (b), 4(a)–(d), 5, and 6. Based on these admis-
sions, I find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act, and
that the Charging Party is a labor organization within the meaning
of Section 2(5) of the Act.
Respondent’s answer also admitted certain other allegations
raised by the complaint. Additionally, at hearing, Respondent and
the General Counsel entered into a written stipulation which is in
evidence as General Counsel’s Exhibit 5. Based upon these
documents, I find that at all material times, David Holland, Wanda
Smith, Suzanne Price, and Tollie Bordeaux have been Respon-
dent’s supervisors and agents within the meaning of Section 2(11)
and (13) of the Act, respectively.
In 1975, Respondent bought a building located at 7923 Line
Avenue, Shreveport, Louisiana. Various companies have leased
or subleased this building from Respondent and have operated a
nursing home in it. In 1996, the Union sought to represent a unit
of employees working at the nursing home. On August 28,
1996, the National Labor Relations Board conducted an election,
which the Union won.
On April 1, 1997, another company took over operation of the
nursing home. This Company was Eden Gardens of Shreveport,
Inc., doing business as Camelot Care at Eden Gardens. I will refer
to it as “Camelot Care” or simply as “Camelot.”
Camelot entered into a collective-bargaining agreement with
the Union. In this agreement, Camelot recognized the Union as
the exclusive representative of the employees in the following
unit:

All full–time, part–time and relief employees employed by
the Employer at its Shreveport, Louisiana facility who work
as nursing assistants, laundry, housekeeping/maintenance,
food service employees, excluding all other employees, food
service supervisors, licensed professionals, office clerical em-
ployees and guards, professional employees and supervisors
as defined in the Act.

This is the same unit alleged to be appropriate in complaint
paragraph 8. I find that it is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act.
The collective-bargaining agreement between the Union and
Camelot had a stated term of October 1, 1997, through August 30,
1999. It also contained a provision, called an “Evergreen clause,”
which stated as follows:

This Agreement shall continue in effect from year to
year thereafter, unless terminated by either party giving
the other party written notice of its desire to terminate, re-
vise or amend said Agreement at least ninety (90) days
prior to the expiration of the Agreement period or anniver-
sary date.

From the record, it is not entirely clear whether the collective-
bargaining agreement renewed itself automatically for 1 year
pursuant to this “Evergreen clause.” However, the evidence sug-
gests that such a renewal took place.
Camelot experienced significant financial problems. More than
once, the power company threatened to cut off electricity because
Camelot had not paid its bill.
Because of Camelot’s financial problems, it did not comply
with the wage provisions of the collective-bargaining agreement.
The Union filed a grievance which resulted in arbitration. On
October 12, 1999, Arbitrator John F. Caraway conducted a hear-
ing, but Camelot’s management failed to appear. On March 9,
2000, Arbitrator Caraway issued a default judgment in favor of
the Union.
Camelot’s financial problems had other consequences. Came-
lot leased the nursing home facility from Respondent and fell
behind in its rent payments. Therefore, Respondent decided to
end its relationship with Camelot and run the nursing home itself.
On March 1, 2000, Respondent took over operation of the facil-
ity. From the record, it is not clear exactly when the Union be-
came aware of this change in management, but I infer that the
Union did not learn about the change immediately.
Thus, on May 24, 2000, almost 3 months after Respondent be-
gan operating the nursing home, the Union notified Camelot that it
wished to renegotiate the collective-bargaining agreement. The
Union received a June 13, 2000 reply stating that the facility “has
been closed for some time.”
That statement, however, was not true. The facility itself re-
mained open, although it was being operated by Respondent
rather than Camelot.
The Union filed a charge against Camelot with the Board, al-
leging that Camelot had refused to bargain. The Union then
learned that management of the nursing home had changed.
On about August 2, 2000, Union Representative Sadie Harper
delivered to the nursing home a letter dated July 31, 2000, and
addressed to “Administrator, Eden Gardens Nursing Home.” This
letter, which is in evidence as General Counsel’s Exhibit 3, re-
counted that the Union had filed a charge against the previous
owner and had learned that the nursing home had changed hands.
Then, the letter stated

As a result, we are making this request for bargaining to the
current owner/operator. When Ms. Harper requested the
name of the owner/operator from you, you told her that was
“privileged information.” Please forward this letter to the ap-
propriate party for action.
The Union proposed to meet to begin bargaining at 3
p.m. on August 9 in Shreveport, La., at the Local 100 un-
ion hall, 5000 Greenwood Rd.
If you are not available on that date, please propose
several alternate dates in the same two–week time frame.
Please provide a list of all employees at the facility,
with name, job title, shift, date of hire, wage rate, address
and phone number.

Respondent has stipulated that the nursing home administrator,
David Holland, received the Union’s letter and forwarded it to
EDEN GARDENS NURSING HOME 77
Respondent’s owner and president, Tollie Bordeaux. Respondent
also stipulated that it understood the letter to mean that the Union
wanted to open negotiations. Further, Respondent stipulated that
it did not respond to this letter, and did not submit any documenta-
tion to the Union in response to the letter.
On August 21, 2000, the Union mailed another letter to Re-
spondent. This letter, in evidence as General Counsel’s Exhibit 4,
again requested bargaining, and also requested a list of all em-
ployees at the facility, with name, job title, shift, date of hire, wage
rate, address, and telephone number.
Respondent stipulated that sometime before August 30, 2000, it
received this letter. It also stipulated that it did not respond to this
letter. Further, Respondent stipulated as follows:

Since March 1, 2000, the Respondent has not recog-
nized the Union as the collective bargaining representative
of the employees in the unit described in General Coun-
sel’s Exhibit 2, has decided not to and stated it will not ne-
gotiate with the Union and has not submitted to the Union
any documentation and/or information in response to Gen-
eral Counsel’s Exhibits 3 and 4.

General Counsel’s Exhibit 2 is the collective-bargaining
agreement between the Union and Camelot. The recognition
clause of that agreement contains the unit description which I
have already quoted.
The pivotal question in this case concerns whether Respondent,
upon taking control of Eden Gardens Nursing Home, had a duty to
recognize and bargain with the Union as the exclusive representa-
tive of its employees in the bargaining unit. If Respondent had
such a duty, then it violated the law by refusing to recognize and
bargain with the Union, and by refusing to provide the Union with
the information the Union requested concerning bargaining unit
employees.
In its answer, Respondent admitted that a majority of its em-
ployees were previously employees of Camelot. Additionally,
Respondent has stipulated as follows:

At all material times, the Respondent has been a successor
employer to Camelot in accordance with National Labor Re-
lations Board v. Burns International Security Services, Inc. et
al. Burns International Security Services, Inc., 406 U.S. 272
(1972).

See General Counsel’s Exhibit 5, paragraph 3.
An employer which is a successor under this Supreme Court
decision is called a “Burns successor.” The evidence supports the
Respondent’s stipulation that it is a Burns successor. In N.K.
Parker Transport, Inc., 332 NLRB No. 54 (2000), the Board reit-
erated its standards for determining whether there has been the
substantial continuity between two successive employers which
would make the second employer a Burns successor. The Board
stated, in part, as follows:

In making a “continuity” determination, the Board looks to
whether (1) there has been substantial continuity of business
operations; (2) the new employer uses the same plant with the
same machinery, equipment and production methods; and (3)
the same or substantially the same employees are used in the
same jobs under the same working conditions and supervisors
to produce the same product or provide the same service.

The evidence clearly satisfies this three-part test. Camelot op-
erated a nursing home and Respondent now operates a nursing
home at the same location. Moreover, as Respondent’s answer
admits, a majority of Respondent’s employees were previously
employees of Camelot. Therefore, I conclude that there is sub-
stantial continuity between the business operations of Camelot and
Respondent. In accordance with Respondent’s stipulation, I find
that when it took over the operation of the nursing home on March
1, 2000, it was a Burns successor to Camelot.
At first blush, my finding that Respondent was a Burns succes-
sor, which Respondent does not dispute, would appear to resolve
this case in favor of the Government. Under the Burns successor-
ship doctrine, if a union was the exclusive representative of a unit
of the predecessor’s employees, the Burns successor must recog-
nize and bargain with the union as the representative of its em-
ployees in the same unit.
However, I do not view Respondent’s stipulation that it was a
Burns successor as an admission that it had a duty to recognize
and bargain with the Union. By admitting that it is a Burns suc-
cessor, Respondent acknowledges that it would acquire any bar-
gaining obligation which its predecessor possessed. However,
Respondent contends that the predecessor did not have any duty to
bargain with the Union on March 1, 2000, the date when Respon-
dent took over the facility. If the predecessor had no such duty,
then it could not pass such an obligation along to its successor.
Therefore, I must determine whether Camelot Care had a duty
to recognize and bargain with the Union at the time the Respon-
dent took over. If Camelot had such a duty, then Respondent
acquired it. If Camelot had no such duty, neither did Respondent.
Respondent concedes that it bears the burden of establishing
that it held a good-faith, reasonably based doubt that the Union
retained the support of a majority of the unit employees. In analyz-
ing whether the Respondent has carried this burden, I begin by
noting that, as used here, the word “doubt” means “uncertainty”
rather than disbelief. As the Supreme Court stated in Allentown
Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), “If the sub-
ject at issue were the existence of God, for example, ‘doubt’
would be the disbelief of the agnostic, not of the atheist. A doubt
is an uncertain, tentative, or provisional disbelief.”
To establish the existence of such a doubt or uncertainty, Re-
spondent points to a number of factors. First, it notes that in April
1996, the Union lost an election to represent the unit employees.
Only later, in a second election conducted in August 1996, did the
Union win.
This argument may be analogized, perhaps, to a situation in
which a woman at first declined a suitor’s proposal of marriage,
but later accepted and went through with the ceremony. I would
hesitate to assume that her initial “no” signified that some uncer-
tainty lingered into the marriage long after she said “I do.”
Although the Union won the second election, conducted in Au-
gust 1996, Respondent suggests that the results of this election
actually create uncertainty, or at least contribute to uncertainty
regarding whether or not the Union enjoyed majority support at
the time Respondent took over the facility in March 2000. This
argument is rather novel, in that it claims that Respondent was
uncertain about the Union’s status because of an election which
the Union certainly won. To assure that I state the thrust of Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78
spondent’s argument correctly, I will quote from Respondent’s
pretrial brief:

To Tri–State’s knowledge, even fewer employees
voted in the second election (8–28–96) and the Union won
by one vote. (The actual tally was only 17 of 39 bargain-
ing unit employees voted for the Union which won the
election 17 to 7.)

Respondent is incorrect is claiming that the Union won the
election by only one vote. The Union won this election by 10
votes, a margin of more than two to one.
To reach the faulty conclusion that the Union won by only one
vote, Respondent necessarily must assume that many of the em-
ployees who did not vote at all would have cast their votes against
representation by the Union. However, such an assumption is
hardly proper.
There are many reasons why an employee might not vote at all
in the election. For example, the employee may have been sick,
out of town on business, on vacation, or attending a funeral. Such
reasons have no relationship to the way the employee would have
voted if he or she had been present at the polls.
Respondent also asserts that the number of employees authoriz-
ing dues checkoffs dropped from 11 in January 1998 to 2 in Sep-
tember 1999. Respondent’s brief argues as follows:

A decline in dues check-offs is an entirely objective measure
of union support. While employees can support the union
without dues check-off, the fact that employees are stopping
dues check-off and dropping out of the Union is an objective
sign that the Union is losing support. Further, while the num-
ber of employees authorizing dues check-off may not be con-
clusive, when only a very few of the bargaining unit employ-
ees have authorized dues check-off, as here, coupled with
such a significant decline in check-offs, it is an objective fac-
tor indicating a lack of support for the Union.

Particularly in the circumstances of this case, I cannot agree
that a cancellation of dues check-off signifies anything concerning
an employee’s desire for union representation. At the time of the
asserted decline in dues check-off, the employer, Camelot Care,
was experiencing extreme financial problems which, in turn,
caused the bargaining unit employees significant financial prob-
lems.
The Union’s collective-bargaining agreement with Camelot is
in evidence. It establishes that employees with entry-level senior-
ity began at a wage rate of minimum wage plus 10 cents per hour.
Under the contract, each year of seniority raised an employee’s
wage rate by 10 cents an hour. However, Camelot did not comply
with this provision, which resulted in the Union filing a grievance
and taking it to arbitration.
Considering the financial stresses placed upon the employees
by Camelot’s failure to pay the contractual wages, an employee’s
cancellation of dues check-off may have indicated nothing about
the employee’s desire to be represented by the Union. Much more
likely, it simply signified that the employee was having difficulty
making ends meet. In these circumstances, it would not be rea-
sonable to assume that the decline in dues check-off reflected
waning employee support for the Union.
In its pre-trial brief, Respondent cited statements which various
employees reportedly made to Suzanne Price, who was assistant
administrator at the nursing home when Camelot ran it, and who
remains assistant administrator of the nursing home under Re-
spondent’s management. However, Price’s testimony at the hear-
ing falls short of the description in the brief.
Price testified that four employees, Melissa Hall, Bobbie
Sowell, Lois Spratt, and May Thomas, requested that their dues
check-off authorizations be terminated. Price testified that these
four employees made the requests in 1998 but she could not pro-
vide more specific information.
Price clearly had little recollection of these conversations in
1998. I do not find that any of the four employees who rescinded
their check-off authorizations expressed a desire not to be repre-
sented by the Union.
To support its claim of good faith doubts about the Union’s
status, Respondent also relies on the testimony of Wanda Smith.
According to Smith, some time in June or July 1999, she over-
heard three nurse’s aides talking at the nursing station. Smith
testified that these aides said that they did not see what good the
Union did, that all they did was pay dues but they did not see how
it made any difference in their benefits. Smith did not recall the
names of these employees.
The statements described by Smith appear somewhat analogous
to a statement discussed by the Supreme Court in its Allentown
Mack decision. In that case, an employee stated that he was not
being represented for the $35 he was paying in dues. The Su-
preme Court concluded that this statement was simply an expres-
sion of dissatisfaction with the union’s performance which could
reflect a desire that the union represent him more effectively but
could also reflect the speaker’s desire to save his $35 and get rid
of the Union. The Court then stated that the “statement would
assuredly engender an uncertainty whether the speaker supported
the union, and so could not be entirely ignored.”
I conclude that this statement might well engender some uncer-
tainty regarding employee support for the Union but that, standing
alone, it does not suffice to establish a reasonable good-faith
doubt.
Additionally, the statement must be considered in the context in
which it was made. The employer at that time, Camelot, had
failed to abide by the wage provisions of the collective-bargaining
agreement. The Union was taking action, but that action, pursuing
a grievance, had not yet produced results.
The complaint in this case names only Tri-State Health Service,
Inc. as the Respondent. It does not name the predecessor, Came-
lot, and it does not allege that Camelot engaged in unfair labor
practices which contributed to any decline in employee support
for the Union.
However, I note that Camelot’s failure to abide by the terms
and conditions of its collective-bargaining agreement with the
Union would violate Section 8(a)(5) of the Act. Moreover, this
violation would lead directly to the employee disaffection re-
flected by the statements of the nurse’s aides. When there is a
causal connection between unfair labor practices and employee
disaffection with their union, such disaffection cannot form the
basis for a good faith doubt regarding the union’s majority status.
See, e.g., Stan Scott d/b/a Scott Bros. Dairy, a Sole Proprietor-
EDEN GARDENS NURSING HOME 79
ship, 332 NLRB No. 163 [1542] (2000); Pirelli Cable Corp., 323
NLRB 1009 1997).
The evidence establishes that when Respondent took over op-
eration of the nursing home, it was aware that its predecessor had
failed to abide by its collective-bargaining agreement with the
Union. David Holland began work as administrator at the nursing
home in October 1999, and continued to work as administrator
after Respondent took over on March 1, 2000. Respondent has
admitted that Holland is its supervisor and agent.
Holland testified that in late October or early November 1999,
he received from Union Representative Sadie Harper a notice
which is in evidence as General Counsel’s Exhibit 6. Harper
asked Holland to post this notice at the facility. The notice is
entitled “Union Fights for Higher Pay at Eden Gardens” and
states, in pertinent part, as follows:

In 1997, the Local 100 Union in Shreveport won a contract
for the union members at Eden Gardens that was supposed to
give workers a 10-cent increase in pay for each year of senior-
ity with the nursing home. The raise is in the contract, written
in black-and-white.
But the company that owns the nursing home, Camelot
Healthcare, refused to pay the raises it had agreed to. The
company said it would only give seniority pay for the
years worked since Camelot took over the nursing home.
So, the union filed a legal action against the company to
pay the wages.
Last year, the company had agreed to pay the union
workers $10,000 in back pay, and raise their current pay to
the correct rates. But the company backed out at the last
minute back in February 1999.

Judge Hears Union Case on Oct. 11 in Shreveport

So the union re-filed the legal case. On Oct. 11, 1999,
a judge heard our case. Union representatives Zack Nauth
and Sadie Harper . . . told the judge why Camelot owed
the workers more than $30,000 in back pay. The company
did not show up for the hearing.
The judge, Mr. John Caraway, said he would make a
decision in 60 days on whether the union workers would
receive back pay since 1997 (almost two years), and pay
raises.

By “judge,” the Union notice referred to the arbitrator who
heard its grievance. Holland posted the notice next to the time
clock.
The record does not show any reason for Holland to have
doubted the statement in this notice that Camelot had failed to
provide the contractual benefits. Considering Holland’s position
as administrator, he certainly knew about Camelot’s financial
problems which caused it to be in arrears even on its electric bill.
When Holland became Respondent’s nursing home administra-
tor, he brought with him the knowledge he gained from this no-
tice. In view of this knowledge, which concerned Camelot’s fail-
ure to abide by the terms of the collective-bargaining agreement,
he knew, or should have known, that any employee disaffection
with the union was causally related to Camelot’s repudiation of or
failure to abide by the collective-bargaining agreement.
Considering that Respondent knew of the causal connection be-
tween Camelot’s failure to abide by the collective-bargaining
agreement and the statements of the nurse’s aides to the effect that
they did not see what good the Union did for them, it was not
reasonable for Respondent to rely upon these statements as an
indication that employees no longer supported the Union.
In its pre-trial brief, Respondent asserted that apart from this
flyer which Union Representative Harper gave to Administrator
Holland, and which Administrator Holland posted at the facility,
the nursing home was objectively devoid of Union activity since
mid-1999. Credible evidence does not support this assertion.
The record suggests that Camelot was playing a game of hide
and seek with the Union. Arbitrator Caraway’s decision notes that
he made a number of attempts to contact Camelot’s officials but
that his calls went unanswered. The decision also noted that the
arbitrator sent a letter to Camelot’s chief financial officer, notify-
ing him of the arbitration hearing date, but that no representative
of Camelot appeared at the arbitration.
Additionally, in May 2000, when the Union notified Camelot
of its desire to negotiate changes in the collective-bargaining
agreement, it received a reply that the facility had been closed for
some time. That statement obviously was false.
Moreover, the evidence suggests that Respondent continued the
practice of hiding from the Union. As General Counsel’s Exhibit
3 indicates, when a Union representative contacted the nursing
home to find out about the new management, it received the reply
that this information was “privileged information.” Thus, the
Union had to go to considerable effort even to learn the identity of
the new management.
As already noted, both before and after Respondent took over
the nursing home, David Holland served as administrator. Hol-
land testified that in late October or early November 1999, when
Union Representative Harper gave him the notice and requested
that it be posted, Holland took the notice to assistant administrator
Suzanne Price and said, “I wasn’t aware we were in a union.”
According to Holland, Price replied, “Oh yes, we were in a union.
The employees did not like it and dropped out.”
I do not credit Holland’s testimony to the effect that he did not
know that a Union represented a unit of employees at the nursing
home. It seems quite incredible that Holland would have posted
the Union’s notice if he really believed that the Union did not
represent the employees.
At the very least, it is quite unusual for an employer to post a
notice from a union with which it has no relationship. The record
in this case offers no explanation for Holland posting such a notice
if he truly believed that the Union did not represent any workers.
Therefore, to the extent Holland’s testimony conflicts with that
of other witnesses, I do not credit it.
Respondent must establish that Camelot had reasonable doubts
about the Union’s majority status. It also bears the burden of
establishing that Camelot held such doubts in good faith. Respon-
dent has not carried its burden of proof.
To the contrary, the evidence suggests that Camelot’s manage-
ment made a conscious choice to ignore the Union in the hope that
it would go away. This “see no union, hear no union, speak to no
union” approach creates the impression of monkey business, not
good faith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80
Respondent has admitted that it is a Burns successor. There-
fore, if Camelot had a duty to recognize and bargaining with the
Union, Respondent acquired that duty. Since Camelot did have
such a duty, so does Respondent.
Therefore, I conclude that Respondent, as a Burns successor,
had a duty to recognize and bargain with the Union as the repre-
sentative of its bargaining unit employees, and that its failure to do
so violated Section 8(a)(1) and (5) of the Act. See Scepter Ingot
Castings, Inc., 331 NLRB 1509 (2000). Additionally, I conclude
that Respondent violated Section 8(a)(1) and (5) of the Act by
failing to provide the information requested by the Union, which
was relevant and necessary to perform its function as exclusive
bargaining representative.
In accordance with Stan Scott d/b/a Scott Bros. Dairy, a Sole
Proprietorship, 332 NLRB No. 163 [1542] (2000), I conclude that
an affirmative bargaining order is warranted to protect employees’
Section 7 rights. Further, I will recommend that the Board order
that Respondent provide the Union with the information it re-
quested.
When the transcript of this proceeding has been prepared, I will
issue a certification which attaches as an appendix the portion of
the transcript reporting this bench decision. This certification also
will include provisions relating to the findings of fact, conclusions
of law, remedy, Order, and notice. When that certification is
served upon the parties, the time period for filing an appeal will
begin to run.
Finally, I would like to thank counsel for the very great profes-
sionalism and civility which they demonstrated throughout this
proceeding. The hearing is closed.