HQM of Bayside, LLC

National Labor Relations Board - Board Decisions

Sep 29, 2006

348 N.L.R.B. 758 (N.L.R.B. 2006)

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 BOARD760
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 BOARD762
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 BOARD764
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 BOARD766
(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.