Tri-State Health Service, Inc. d/b/a Eden Gardens Nursing Home - Decision Summary

Tri-State Health Service, Inc. d/b/a Eden Gardens Nursing Home (15-CA-15903; 339 NLRB No. 12) Shreveport, LA May 27, 2003. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish Service Employees Local 100 with requested information and refusing to recognize and bargain with the Union; and that, for the reasons set forth in Caterair International, 322 NLRB 64 (1996), an affirmative bargaining order is warranted to remedy the Respondent's unlawful refusal to bargain with the Union.

Member Schaumber does not agree with the view expressed in Caterair International that an affirmative bargaining order is "the traditional, appropriate remedy for an 8(a)(5) violation." He believes the Board should revisit and reconsider its policy of imposing affirmative bargaining orders in all cases involving 8(a)(5) refusal-to-bargain violations. However, he agreed that a bargaining order is warranted on the facts of this case.

The Respondent admitted that it was a successor employer pursuant to Burns Security Services, 406 U.S. 272 (1972). The judge found that the Respondent withdrew recognition from the Union on February 29, 2000 and refused to recognize the Union beginning on about July 31, 2000. The Board found however that the Respondent refused to recognize and bargain with the Union as of August 2, 2000, the date the Union first delivered its bargaining demands to the Respondent, which were ignored. It pointed out that a successor employer's bargaining obligation attaches on the date it receives the bargaining demand and the evidence did not establish that the Union had previously demanded, or that the Respondent had previously granted, recognition to the Union as the bargaining representative.

The Board noted that while this case was pending, Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) issued, overruling 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. In Levitz, the 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." 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 explicated by the Supreme Court in Allentown Mack Sales and Service v. NLRB, 522 U.S. 359 (1998). In this matter, the Board said that the judge had correctly cited and applied the Allentown Mack standard. Member Schaumber did not participate in Levitz and expressed no view as to whether it was correctly decided.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Service Employees Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Shreveport on April 2, 2001. Adm. Law Judge Keltner W. Locke issued his decision May 4, 2001.