Iroquois Nursing Home, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2012

03-CA-073221 (N.L.R.B. Sep. 26, 2012)

JD–53–12
Syracuse, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
IROQUOIS NURSING HOME, INC.,
Case 03–CA–073221
and
1199 SEIU, HEALTHCARE WORKERS EAST
Alfred M. Norek, Esq. (NLRB Region 3),
for the General Counsel
Raymond J. Pascucci, Esq. (Bond, Schoeneck & King, PLLC),
of Syracuse, New York, for the Respondent
Ross P. Andrews, Esq. (Satter & Andrews, LLP),
of Syracuse, New York, for the Charging Party
DECISION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case involves the government’s
contention that an employer unlawfully withdrew recognition from its employees’ union. The
employer withdrew recognition on the strength of a petition rejecting the union and signed by a
clear majority (90 of 132) of the bargaining unit employees.
The government does not claim that the employer engaged in conduct undermining the
validity of the petition, or that the petition was not validly signed by a majority of the bargaining
unit. Rather, the government asserts that the petition should not have been relied upon to prove
the union’s lack of majority support because at the time the employer withdrew recognition the
petition’s initial 28 signatures were more than six months old. The government contends that in
the six months before withdrawal of recognition, while the petition continued to circulate, the
union reinvigorated its representation efforts with the employees and this changed the
circumstances at the workplace in a manner that undermined the reliability of the petition as an
expression of a lack of support for the union.
For the reasons set forth herein, I conclude that the petition provided an objective and
uncontradicted basis for concluding that the union lacked majority support at the time the
employer withdrew recognition. Neither the timing of the signatures nor the circumstances
during the course of the petition drive undercuts the evidence of lack of support demonstrated
by the petition. Accordingly, I will recommend dismissal of the complaint.
JD–53–12
2
STATEMENT OF THE CASE
On January 26, 2012, 1199 SEIU Healthcare Workers East (Union) filed an unfair labor
practice charge against Iroquois Nursing Home, Inc. (Employer or Iroquois), docketed by
Region 3 of the National Labor Relations Board (Board) as Case 03–CA–073221.5
On June 25, 2012, based on an investigation into the charge filed by the Union, the
Acting General Counsel (General Counsel), by the Regional Director for Region 3, issued a
complaint and notice of hearing against the Employer alleging violations of Section 8(a)(1) and
(5) of the National Labor Relations Act (Act). The Employer filed an answer denying all 10
violations of the Act.
A trial in this case was conducted August 9, 2012, in Syracuse, New York. In
accordance with my ruling at the hearing, on August 23, 2012, the Employer filed a stipulation of
fact agreed to by the parties, which is hereby admitted into the record as Respondent’s Exhibit 15
7.1 Counsel for the General Counsel, the Respondent, and the Union filed briefs in support of
their positions by September 13, 2012. On the entire record, I make the following findings,
conclusions of law, and recommended Order.
JURISDICTION20
The Employer is a corporation with an office and place of business in Jamesville, New
York, where it is engaged in the operation of a long-term health care facility. In conducting this
operation the Employer annually derives gross revenues in excess of $100,000. The Employer
purchases and receives at its Jamesville, New York facility goods valued in excess of $5000 25
from points outside the State of New York. The General Counsel alleges, the Employer admits,
and I find that at all material times the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union has been a
labor organization within the meaning of Section 2(5) of the Act.
30
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction of this case, pursuant to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
35
Background
On May 1, 2008, the Union was certified by the Board as the collective bargaining
representative of a bargaining unit of Iroquois’s employees. The Union and Iroquois
subsequently entered into a collective-bargaining agreement, effective December 15, 2008, and 40
scheduled to expire no earlier than December 31, 2011, covering the terms and conditions of
employment for the bargaining unit employees. As of January 2012, there were 132 employees
employed in the bargaining unit. The agreement described the unit as follows:

1In the stipulation, counsel for the Respondent represents that the parties have agreed to
the stipulated facts set forth therein, which concern the monthly tally of employees paying union
dues between January 2011 and January 2012. No party has objected to the factual assertions
of the stipulation and therefore I accept the stipulation.
JD–53–12
3
All full-time and regular part-time Certified Nursing Aides, Activity Leaders, Unit
Secretaries, Service Aides, Food Service Workers, Cooks, Maintenance and
Grounds employees, Housekeeping employees, Laundry employees, Clerks and
Receptionists, employed by Iroquois at [its] facility [ ] located at 4600 Southwood
Heights Drive, Jamesville, New York. . . 5
. . . The bargaining unit does not include Licensed Practical Nurses or other
technical employees, Registered Nurses or other professional employees, casual
employees, temporary employees, confidential employees, guards, supervisors,
or any other employees. 10
The newly-certified Iroquois bargaining unit was initially serviced by Union Administrative
Organizer Edward Ruiz for over two years. In the mid to latter part of 2010, he was replaced by
administrative organizer Dennis Zgoda. By letter to the Employer dated July 18, 2011, the
Union advised Iroquois that effective July 27, 2011, Zgoda was leaving the Union and that the 15
new organizer would be Maria Revelles. While Revelles’ appointment was effective July 27,
she did not begin her duties until early August.
When Revelles reviewed the Union’s files on the Iroquois unit before taking over as the
administrative organizer, she found little evidence of union activity. She found 20
no grievances, no notes from bargaining no notes from labor-management
[meetings] no notes from meetings. So then I figure out, you know, really there’s
nothing going on.
25
Employee Janet Straw testified that when Zgoda was the representative, the union
bulletin board remained unchanged for months with outdated “long gone” events. Zgoda only
visited the facility “a few times,” perhaps three to five times.
Revelles’ tenure as administrative organizer30
Revelles took some steps to try to reinvigorate the unit and the union representation.
She contacted Iroquois about taking a facility tour and took steps to exercise the Union’s right
under the contract to “orient” new employees with a presentation about the Union and an offer
to have them join the Union.2 35
The Union distributed a newsletter to employees that featured a photograph and
introduction from Revelles and provided her contact information. Revelles organized a “blitz” in
which staff from the Union’s Syracuse office spent a long weekend in early August telephoning
and house-calling on every unit employee, and successfully contacting many or most of them. 40
Revelles began visiting the facility. She visited a couple of times a week in August and
(although the record is unclear) a couple of times a month after that. Revelles continued to mail
and distribute monthly newsletters to employees during the following six months. She made
sure the bulletin board notices were changed and kept up to date.45

2The parties’ agreement provided that employees hired after January 1, 2008, must either
join the Union (with an obligation to pay dues) or pay an agency fee not to exceed the cost of
regular dues. Employees who were hired prior to January 1, 2008, retained the option of not
being a member of the Union and paying neither dues nor an agency fee.
JD–53–12
4
Revelles began announcing weekly union meetings and soliciting employees to attend
through the newsletters, house visits, and telephone calls. However, there were never more
than four employees who attended through January 2012. Revelles caused the Union to
distribute surveys to employees to ascertain what issues they were interested in emphasizing 5
for bargaining. Revelles testified that the Union received back 40–50 surveys from employees.
However, when Revelles established the bargaining committee she had to rely on the same four
employees who attended union meetings. According to Revelles, “those [four] were the
members who were ready to come forward and wanted to join the bargaining committee.”
There is evidence that one additional employee participated on the bargaining committee as 10
well.
Revelles filed two grievances between August 2011 and January 2012, a number she
considered low in comparison to other facilities she represented. She caused three unfair labor
practices to be filed be filed by the Union, which, although settled without admission or finding of 15
wrongdoing, resulted in reinstatement and backpay for an employee and a change to the
Employer’s social media policy.
The labor agreement called for labor-management meetings “not less” than every other
month. Revelles conducted one such meeting in October, accompanied by one employee. (The 20
contract permits up to four employee representatives.)
One of Revelles’ goals was to establish a functioning delegates system in the bargaining
unit. Delegates, the Union’s name for what is typically known as a union steward, were
responsible for filing first step grievances, sitting in with coworkers during disciplinary meetings25
and generally serving as the “eyes and ears” of the administrative organizer. By Union
procedures, delegates were given training by the Union in their duties and voted into the
position by the bargaining unit.
According to Revelles, ideally there would be one delegate per shift per job, or30
approximately eight to ten delegates in the Iroquois unit. When Revelles became the union
representative, there was no elected delegate at Iroquois. One employee, Janet Straw
performed some of the delegate duties, but she had never been elected or officially become a
delegate, and based on her testimony felt untrained and not able to perform much of the
delegate duties. Straw began doing some of the delegate’s work while Ruiz and Zgoda were 35
the unit’s organizers, and she had received two hours of training while working with Zgoda. In
the summer of 2011, before he resigned, Zgoda had requested time from Iroquois management
to conduct a delegate election among employees. The Employer agreed to two dates Zgoda
requested but the election was never held and the matter dropped. Revelles worked with Straw
and involved her in numerous union activities, but as of January 2012, Straw had not received 40
any additional formal delegates training (conducted periodically by the Union for prospective
delegates from multiple units). She was never appointed or elected a delegate.
The petition for decertification
45
Beginning with signatures dated July 12, 2011, and ending with a signature dated
January 25, 2012, a majority of the Iroquois bargaining unit employees signed a petition
declaring they did not want to be represented by the Union.
JD–53–12
5
The petition text was typed, with the name of the employer and the name of the Union
written in by hand in parts that called for an employer or union name. The petition stated:
Petition for Decertification (RD)
Removal of Representative5
The undersigned employees of Iroquois Nursing Home (employer name) do not
want to be represented by SEIU 1199 (union name).
Should the undersigned employees make up 30% or more (and less than 50%) 10
of the bargaining unit represented by SEIU 1199 (union name), the undersigned
employees hereby petition the National Labor Relations Board to hold a
decertification election to determine whether a majority of employees wish to be
represented by this union.
15
Should the undersigned employees make up 50% or more of the bargaining unit
represented by SEIU 1199 (union name), the undersigned employees hereby
request that Iroquois Nursing Home (employer name) withdraw recognition from
this union immediately, as it does not enjoy the support of a majority of
employees in the bargaining unit20
Employees’ signatures, their printed name, and the date on which they signed were affixed to
this petition.
A bargaining unit employee filed an RD (decertification) petition with Region 3 of the 25
Board on September 14, 2011. A stipulated election scheduled for October 20, 2011, was
cancelled by an October 5, 2011 order of the Regional Director, based on the unfair labor
charges filed by the Union on October 4, 2011, that blocked the election. These unfair labor
practice cases were the subject of a settlement approved by the Region on November 11, 2011,
that resolved these unfair labor practices, and included a non-admission clause.30
Beginning in December 2011, and into January, 2012, the employee decertification
petition averring that the signers did not want to be represented by the Union was signed by
additional employees.
35
As of January 26, 2012, 90 of the current employees out of a bargaining unit of 132
employees (or 68 percent) had signed the petition.
Broken down by month, 30 employees signed in July 2011, 23 employees signed in
August 2011, two employees signed in September 2011, 22 employees signed in December 40
2011, and 12 employees signed in January 2012.3
45

3In some cases an individual signed the petition twice. For purposes of this description, the
later signature is counted.
JD–53–12
6
Bargaining for a new labor
agreement; withdrawal of recognition
The parties first met for bargaining for a new labor agreement on November 29, 2011.
This was a short meeting, as three of the employee bargaining committee members were not 5
present.4 The parties met again December 28, 2011. During that session the parties extended
the labor agreement—scheduled to expire December 31—to January 18, 2012. On January 18,
the parties agreed to extend the agreement a second time, until January 25, 2012. The
Employer refused to extend the agreement beyond that date and the agreement expired.
10
On January 26, 2012, the Employer withdrew recognition from the Union as the
bargaining unit’s collective-bargaining representative, effective immediately. In a letter to the
Union on that date, the Employer announced the withdrawal of recognition, noting that “[t]he
collective-bargaining agreement between Iroquois and the Union expired on January 25, 2012”
and stating that “Iroquois has been presented with objective evidence that a majority of 15
bargaining unit employees no longer wish to be represented by the Union.” It is undisputed that
this “objective evidence” was the decertification petition signed by 90 of the 132 bargaining unit
employees employed by Iroquois as of January 26, 2012.
Analysis20
A. Background precedent
The precondition for a union’s service as a bargaining unit’s exclusive representative is
the existence of majority support for the union within the unit. Auciello Iron Works v. NLRB, 517
U.S. 781, 786 (1996). This reflects “the Act’s clear mandate to give effect to employees’ free 25
choice of bargaining representatives.” Levitz Furniture Co., 333 NLRB 717, 720 (2001).
However,
[t]he Board has also recognized that, for employees’ choices to be meaningful,
collective-bargaining relationships must be given a chance to bear fruit and so
must not be subjected to constant challenges. Therefore, from the earliest days 30
of the Act, the Board has sought to foster industrial peace and stability in
collective-bargaining relationships, as well as employee free choice, by
presuming that an incumbent union retains its majority status.
Levitz, supra at 720; Auciello Iron Works, supra at 785–786.
The presumption of majority support is usually rebuttable, but in some periods of a 35
collective-bargaining relationship it is conclusive. One such period is during the life of a
collective-bargaining agreement that is not longer than three years duration.5 During a period
when the presumption of majority support is rebuttable—i.e., when no labor agreement is in

4The Union claims employees were not permitted, or thought they may not be permitted, to
leave work to attend. The Employer denies this. Resolution of this factual dispute would not
affect my decision and I decline to resolve it.
5Trailmobile Trailer, LLC, 343 NLRB 95, 97–98 (2004) (Thus, it is a “long-established
principle that a union enjoys an irrebuttable presumption of majority support during the term of a
collective-bargaining agreement, up to 3 years”).
JD–53–12
7
effect or beyond the first three years of a long term agreement— 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." Levitz, 333 NLRB at 725. The Board in Levitz explained:
[A]n employer with objective evidence that the union has lost majority support—5
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 labor practice proceeding, the employer will have to prove
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 10
have rebutted the presumption of majority status, and the withdrawal of
recognition will violate Section 8(a)(5).6
B. Contentions
15
In this case, Iroquois was party to a collective-bargaining agreement of more than three
years in duration, effective December 15, 2008. Accordingly, the Union enjoyed an irrebuttable
presumption of majority support until December 15, 2011. After that and certainly on January
26, 2012, when the extended collective-bargaining agreement ceased to be in effect and
Iroquois withdrew recognition, the Union’s presumption of majority support was rebuttable. 20
Iroquois asserts that the presumption is rebutted by the decertification petition signed by
a majority of the unit employees employed as of January 26. This is, indeed, precisely the type
of evidence that can demonstrate a lack of majority support for the Union. And there is no
evidence that the signatures were invalid, or that the Employer in any objectionable matter 25
interfered with or tainted the petition and signature-gathering process.7
However, the General Counsel and the Union argues that Iroquois’ evidence fails to
prove a lack of majority support for the Union as of the date of withdrawal of recognition,
January 26, 2012. Two related arguments are advanced. 30
First, the Union contends (CP Br. at 10–11) that the bare fact that 28 of 90 petition
signatures were obtained more than six months before the January 26 withdrawal of recognition
means those signatures are “necessarily unreliable” and “stale” evidence that cannot contribute
to proof of the Union’s lack of majority support. If this argument is accepted, it leaves the 35
employer with evidence of only 62 “timely” signatures, five less than needed to prove lack of
majority for the Union in this 132-person bargaining unit.8

6In addition, an employer’s violation of Sec. 8(a)(5) of the Act is a derivative violation of Sec.
8(a)(1) of the Act. Tennessee Coach Co., 115 NLRB 677, 679, enfd. 237 F.2d 907 (6th Cir.
1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
7See Eastern States Optical Co., 275 NLRB 371, 372 (1985) (quoting KONO-TV-Mission
Telecasting, 163 NLRB 1005, 1006 (1967)) (“an employer may only withdraw recognition if the
expression of employee desire to decertify represents “’the free and uncoerced act of the
employees concerned’”).
8At trial, the General Counsel appeared to endorse theory (Tr. 138), but the contention is not
advanced in his post-trial brief.
JD–53–12
8
Second, the General Counsel (GC Br. at 9–10), and the Union (CP Br. at 11–12),
advance the related (but distinct) argument that the older signatures on the petition may not be
relied upon, because, in the intervening months after these signatures were obtained but before
the withdrawal of recognition, circumstances within the unit “changed significantly” (GC Br. at 9).
The General Counsel and the Union argue that the renewed efforts at union representation5
marked by the assignment of Maria Revelles to service the facility in late July, date the older
signatures rejecting the Union because they were collected before her arrival and her
subsequent “reestablish[ment of] the Union’s presence.” (GC Br. at 10).
I consider both arguments below.10
1. The Union’s contention that age alone renders
signatures over six months old “stale”
15
I reject the Union’s contention that the six-month or older signatures are per se “stale”
and unreliable as evidence. Contrary to the Union’s claim, the contention is supported by
neither logic nor law. Essentially, the argument is that employees who signed the petition in the
summer clearly stating their desire not to have a union, were required to reaffirm their
declaration if their view is to count. I can imagine no reason for individual employees to be 20
required, in every case, to keep reaffirming their desire not to have a union every six months in
order for their objective demonstration of their opinion to be considered as part of the collective-
bargaining unit’s opinion. Certainly, in an analogous (albeit, less than perfectly so) context it is
recognized that “the Board has long found union authorization cards signed even more than a
year prior to the filing of a petition to be ‘current’ for purposes of a representation petition 25
seeking certification.” Covenant Aviation, 349 NLRB 699, 703 (2007).
Contrary to the claims of the Union, no precedent supports the view that age alone
renders petition evidence unreliable. On this very point, the D.C. Circuit has opined: “The Board
has never found a withdrawal of recognition to be unlawful solely on that ground. Rather, the 30
Board has also relied upon intervening, post-petition evidence demonstrating continued majority
support for the Union.” McDonald Partners, Inc. v. NLRB, 331 F3d 1002, 1008 (D.C. Cir. 2003)
(footnote omitted). Notably, the General Counsel has acknowledged and accepted this position
in the past. See Sears Logistics Services, Case No. 26–CA–21073 (Div. of Adv. Aug. 15, 2003)
at p. 6 (“Although the Board has found seven-month-old petitions to be ‘stale evidence,’ the 35
Board has never found a withdrawal of recognition to be unlawful solely on that ground. Rather,
the Board has also relied upon intervening, post-petition evidence demonstrating continued
majority support for the Union”) (citing Hospital Metropolitano, 334 NLRB 555, 556 (2001), enfd.
49 Fed.Appx. 320 (D.C. Cir. 2002)).9
40
In this instance the Union asserts that Hospital Metropolitano, supra, supports its
position. However, consistent with the views of the D.C. Circuit and the General Counsel from
2003, I find that Hospital Metropolitano does not stand for the proposition urged by the Union.

9Division of Advice memoranda are not Board decisions and have no precedential weight.
They are of weight only to the extent that the reasoning is persuasive. However, they do
represent the view of the General Counsel’s office at the time issued.
JD–53–12
9
In Hospital Metropolitano, an employer withdrew recognition from the union on
December 3, based on a petition signed by employees seven and a half months before in April.
However, the petition at issue did not state that employees no longer wanted union
representation. Rather, it stated that 5
the [undersigned] employees of Hospital Metropolitano, disallow Mr. Radames
Quiňones Aponte to represent us or to bargain any employment condition in our
name. In addition we will not authorize check-off dues [sic] in favor of [the Union]
as an employment condition.10
334 NLRB at 555 (Board’s parentheticals).
The employer relied upon this petition as its chief basis for withdrawing recognition.
However, the Board rejected the employer’s withdrawal, explaining:15
We agree with the judge that, whether considered individually or
cumulatively, the factors relied on by the Respondent would not create a good-
faith reasonable doubt (uncertainty) as to the Union's majority status. As the
judge found, the April 21 petition indicated that the signers were displeased with 20
Quinones as their representative at the bargaining table, not with the Union itself.
Moreover, the petition was executed some 7 months before the December 3
withdrawal of recognition. Such stale evidence is not a reliable indicator of the
employees' union sentiments at the time recognition was withdrawn. This is
especially true since there were significant changed circumstances between the 25
April petition and the December withdrawal of recognition. Quinones had been
replaced as the Union's negotiator in July, when Arturo Grant became the
Union's sole representative in negotiations. Thus, the employees' earlier
statements indicating unhappiness with Quinones were not a reasonable basis
for questioning the Union's majority support in December, when the Respondent 30
withdrew recognition.
The April petition also indicated that the signers did not want union dues
to be withheld from their paychecks. However, employees' opposition to dues
checkoff is irrelevant to the issue of whether they support the union. As the 35
judge noted, 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. . . .
Finally, as the judge found, the Respondent overstated the percentages 40
of the unit employees who signed the petition. A number of employees who
signed the petition were no longer working at the hospital in December, and
several of the individuals signed the petition more than once. These facts may
explain, in part, the Respondent's mistakes. In any event, the Respondent was
given a copy of the April 21 petition on August 21. It thus had more than 3 45
months before it withdrew recognition on December 3 in which to verify the
number of current employees who had signed it, yet it apparently did not. Had it
done so, it would have known that a majority of the current employees in at least
two, and possibly three, of the units had not signed the petition. The
JD–53–12
10
Respondent's failure to verify the evidence on which it purported to rely in
withdrawing recognition strongly suggests that it did not act in good faith.
334 NLRB at 556 (footnotes omitted).10
5
Thus, in Hospital Metropolitano, the seven month old petition found “stale” had been
signed by a minority of employees working at the time of withdrawal (in two units, and perhaps a
minority of those in the third unit), and, in any event, did not state that employees no longer
wanted to be union-represented, but rather, that they no longer wanted to be represented by a
particular union official, a demand that was resolved in accordance with employee wishes five 10
months prior to the withdrawal of recognition. Such a petition could not even support a pre-
Levitz good-faith doubt of a union’s lack of majority support.
This is a thin reed on which to base the claim that Board precedent views a petition
signed by a clear majority of the unit employees working at the time of the withdrawal of 15
recognition and unequivocally rejecting union representation, as—necessarily—“stale” evidence
because some of the signatures were more than six (but less than seven) months old.
The Union mounts its argument by plucking from context the Board’s statement in
Hospital Metropolitano, that, among the many infirmities of the petition: 20
Moreover, the petition was executed some 7 months before the December 3
withdrawal of recognition. Such stale evidence is not a reliable indicator of the
employees' union sentiments at the time recognition was withdrawn.
25
However, the Board’s view in Hospital Metropolitano that the seven-month-old petition
was stale evidence cannot reasonably be extracted from the context. Even when fresh, the
petition did not reject union representation—it requested removal of a specific union official.
That demand was met. Reasonably, under such circumstances, this rendered the petition
obsolete. 30
The Board in Hospital Metropolitano did not announce that all seven month old petitions
were necessarily stale. Hospital Metropolitano is a case in which numerous other basic and
dispositive factors rendered the petition inadequate evidence even on which to base a
subsequent claim of good- faith doubt supporting a withdrawal of recognition. The better view is 35
that in Hospital Metropolitano and every other case where the issue has arisen, the “staleness”
of the petition evidence is based on what the full circumstances reveal, not based on merely the
rote passage of a preestablished increment of time.11

10Hospital Metropolitano was decided under the pre-Levitz, “good-faith doubt” standard. The
employer contended that the petition provided the good-faith doubt of union majority support
that the Board, pre-Levitz, required employers to show to withdraw recognition.
11Notably, the case cited by the Board in Hospital Metropolitano for the proposition that the
evidence was “stale,” is Rock Tenn Co., 315 NLRB 670 315 NLRB 670, 672 (1994), enfd. 69
F.3d 803 (7th Cir. 1995). In that case, “staleness” of the petition evidence was very obviously a
product of “circumstances” subsequent to the petition showing employee support for the union.
These included the employees’ rallying for the union at a rally, the overwhelming rejection by
employees of the employer’s contract offer, and a majority of employees signing new union
membership cards prior to a negotiating session just prior to the withdrawal of recognition. In
JD–53–12
11
The Union contends that the window for considering the petition signatures should be
strictly limited because Levitz holds that the employer’s evidence must demonstrate actual loss
of majority support—not just a good-faith doubt of majority support, as the standard had been
for many years prior to the Levitz decision.12 The Union also contends that the petition 5
signatures must be very recent because Levitz holds that the lack of majority support must be
demonstrated to exist at the time of withdrawal of recognition; it cannot document a loss of
majority support at some earlier time.
Neither of these contentions is compelling. A signed employee petition has always been 10
the type of evidence that can prove actual employee sentiment—not just doubts about
employee sentiment. Indeed, it is the archetypal example of evidence of a loss of majority
support referenced in Levitz, supra at 725 (“an 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—“). Moreover, the need to prove loss of majority support at the time of 15
withdrawal provides no basis for arbitrarily claiming that the signatures are unreliable because
they were procured a week or month or six and a half months before the withdrawal. Indeed, in
one relevant regard a petition is far superior to other methods—such as an election—of
measuring employee sentiment and should warrant a longer “shelf life”: an election is a
snapshot that does not permit for individual recanting or second chances. But the six month old 20
signatures on the petition could be withdrawn, countermanded or negated by any individual at
any time. Such subsequent evidence would be highly relevant—as a practical matter fatal—to a
decertification petition.13
No such evidence was adduced here. The ability of an individual employee to provide 25
evidence negating her earlier expression of sentiment adds to the lack of justification for and

these circumstances, in assessing majority support at the time of withdrawal,
the Respondent was obligated to test its ‘objective evidence’ of the Union’s loss
of majority status by fully considering more recent evidence to the contrary.
Having failed to do so, the Respondent cannot then rely selectively on only part
of the conflicting evidence regarding the union sentiments of its employees.
315 NLRB at 672–673.
12In Levitz the Board overruled the line of cases that had held that an employer could
withdraw recognition on the basis of doubt or uncertainty regarding the union’s majority status.
The Board held that, henceforth, an employer may withdraw recognition only by showing that, at
the time of withdrawal, the union had actually lost majority support.
13See e.g., HQM of Bayside, 348 NLRB 787, 787–788 (2006) (disaffection “signatures had
effectively been nullified by subsequent signatures on a petition unequivocally supporting
continued representation by the Union”), enfd. 518 F.3d 256, 261 (4th Cir. 2008) (“The Board
reasonably rejected Bayside's argument that the disaffection petition satisfied its burden of
proving an actual loss of majority support "at the time [it] withdrew recognition," [Levitz] at 725
(emphasis added), because many of the signatories evidenced a change of heart, or, at the very
least, an incompatible position, by also signing the Union's petition before Bayside withdrew
recognition”). Accord Parkwood Developmental Center, 347 NLRB 974, 974–975 (2005), enfd.
521 F.3d 404 (D.C. Cir. 2008).
JD–53–12
12
arbitrariness of rejecting on principle and in every case the reliability of petition signatures
obtained more than six months before the withdrawal of rejection. The point is that there can
and should be something in the passage of time after the petition signatures and before
withdrawal of recognition that provides evidence of unreliability of the signatures. The passage
of time, with nothing else, does not render the signatures on a petition unreliable. 5
2. Intervening circumstances do not render the petition
signatures unreliable evidence of employee sentiment
I turn to the second contention urged on brief by the General Counsel and the Union: 10
whether the circumstances surrounding and during the course of the petition drive demonstrate
“changed circumstances” (Hospital Metropolitano) or provide “conflicting evidence” (Rock Tenn)
of employee support for the Union that undermines the reliance on the petition signatures as an
accurate expression of employee sentiment.
15
In some cases, the evidence represented by a majority-endorsed decertification petition
can be undercut, or contradicted, by other evidence tending to show majority support and
therefore reviving the presumption of majority support. To take one particularly effective
example, referenced above, in some cases, a new “pro-union” petition might be circulated and
secure either a majority of unit employees or, perhaps, the signatures of enough of the 20
employees that previously signed the anti-union petition to render the remaining “anti-union”
signatures less than a majority. See, HQM of Bayside, supra; Parkwood Developmental Center,
supra.
But the evidence undermining the reliability of the petition need not be that pointed or
direct as “counter signatures” on a pro-union petition. In Rock Tenn, supra, as discussed, the 25
evidence conflicting with the earlier petition evidence of employee dissatisfaction included an
employee rally in support of the union, the overwhelming rejection by employees of the
employer’s contract offer, and the fact that just prior to the withdrawal of recognition a majority
of unit employees signed new union membership cards.
30
The difficulty for the General Counsel and the Union in this case is that here, the
“changed circumstance” evidence does not amount to much. First, there are no “counter
petitions” or any suggestion that a single employee who signed the decertification petition later
tried to take his or her signature back, or evinced support for union representation in any way.
35
Rather, in this case, the changed circumstances claim is the assertion that the new
union representative Maria Revelles brought increased efforts and attention to the unit. She
organized a four day “blitz” in August that put Union organizers in contact with much of the
bargaining unit. She visited the plant two or three times a month throughout the fall and winter
and distributed monthly newsletters trying to keep employees informed about and interested in 40
the Union. She filed two grievances, caused three unfair labor practices to be filed, and had
some success there, and she caused the Union to distribute surveys to employees in
preparation for bargaining to ascertain what issues employees were interested in the Union
pursuing.
45
But the fact is, these efforts did not result in any objective manifestation of employee
support for the Union that could undercut the objective evidence of the signatures of a majority
of employees on a decertification petition.
JD–53–12
13
At most, four employees out of 132 attended the union meetings and sometimes there
were less. These four were the only employees who showed interest in the bargaining
committee. There were no rallies of a majority of employees expressing support for the Union.
Revelles made no progress in her goal of increasing the presence of union delegates on 5
the shop floor: employee Straw continued to act, to some extent, as a delegate, as she had for
over a year. But she did not receive further formal training, she did not stand for election or
even appointment as a delegate. There was no other action taken to create additional
delegates—informal or official—in addition to Straw. In sum, there was no increase in the
number of delegates, or employees interested in being delegates, or in the responsibilities, 10
function, or assignment of the one employee who for some time had seemed on the verge of
becoming an official delegate.
Finally, it is worth pointing out that there is no evidence of an uptick in employees joining
the Union from in August 2011 through January 2012. In August 2011 there were 64 union 15
dues-paying employees, five agency-fee payers, and the remainder paid neither (an option
afforded to employees hired prior to 2008). The number of union dues-payers did not increase
in any month after that, and in January 2012 there were 52 union dues-payers, four agency-fee
payers, and the remainder chose to pay neither. Thus, there is no indication of increased
support for the Union to be found in membership data.1420

To be clear, none of these factors regarding Revelles’ efforts, or the lack of increase in
union participation or membership, independently support a claim that the Union has lost the
presumption of majority support.15 But they do not counter such a claim, independently
supported. Here, the sentiments of a majority of employees declaring that they no longer 25
wanted the Union to represent them stands uncontradicted by any evidence. Moreover, it is
notable that in December 2011 and January 2012, the number of petition signers went from 56
to 90, an addition of 34 signatures that broke through the majority mark after Revelles had been
the representative for months and “reinvigorated” representation efforts. Nothing that occurred
or is discernible under Revelles’ tenure as servicing representative provides a basis on which to 30
conclude that the lack of majority support for the Union evidenced by the petition signatures had
been undercut, dissipated or counteracted as of January 26, 2012.16

14The situation may be contrasted to that in Rock Tenn, where the union launched a
membership drive among employees after a majority signed a decertification petition. A
majority of unit employees signed the union membership cards, but the employer ignored this
evidence and withdrew recognition based on the earlier decertification petition. While the Board
found the union membership drive (and other evidence of support for the union) was “not
dispositive of union sentiment,” it found that such evidence must be considered as “contrary” to
the employer’s petition evidence and that it undercut the contention that the petition constituted
sufficient evidence to support withdrawal of recognition. 315 NLRB at 672–673.
15See also, Hospital Metropolitano, supra at 556 (“employees’ opposition to dues checkoff is
irrelevant to the issue of whether they support the union. . . [E]mployees . . . may even be ‘free
riders’ who desire and accept union representation without joining the union and paying dues”).
16Notably, in terms of “changed circumstances,” the chief case relied upon by the General
Counsel and the Union, Hospital Metropolitano, supra, is instantly distinguishable, among other
reasons, because the employees’ petition upon which withdrawal of recognition was based,
demanded that a particular union official not be permitted to represent or bargain for employees,
JD–53–12
14
At bottom, the General Counsel and Union’s contention is that renewed union efforts
are, without any evidence of employee response, and no evidence that employee demands
were addressed, enough to undercut and contradict the objective evidence of majority rejection
of union representation. Precedent does not support this claim. Indeed, the Union and the 5
Board’s view of the quality and effort of union organizing efforts are beside the point. The issue
is evidence of employee sentiment. Revelles’ efforts notwithstanding, no record evidence of
employee support for the union contradicts—or even lends ambiguity—to the objective
demonstration that a majority of unit employees did not want representation.
10
I accept that there may be some limit to the length of time that a petition and its
signatures can remain valid evidence of a loss of majority support. After all, the passage of time
does, indeed, lead inexorably to changes in circumstances. A new contract ratified, a proposed
contract voted down—majority employee action like this might well serve to vitiate the force of
pre-existing petition signatures. But that is not this case. Here, in the months prior to and 15
during bargaining for a new labor agreement, a majority of employees stated clearly in a
petition, without evidence of coercion or taint, that they no longer wanted union representation.
There is no contrary evidence that undermines that statement by the majority.17
I will recommend dismissal of the complaint.20
CONCLUSIONS OF LAW
Respondent did not violate the Act as alleged in the complaint. On these findings of fact
and conclusions of law and on the entire record, I issue the following recommended1825

and that union official was replaced after the petition but five months before withdrawal of
recognition. Thus even granting that employees’ rejection of a particular union official could
raise a good-faith doubt about employee support for union representation per se—the pre-Levitz
standard at issue in Hospital Metropolitano—the circumstances animating the petition in that
case were redressed, thus rendering the petition an outdated basis for a withdrawal of
recognition. Here, by contrast, we consider a post-Levitz claim of actual loss of majority
support. The unequivocal statement by a majority of employees that they did not want union
representation certainly meets that standard and the “changed circumstances” asserted by the
Union and the General Counsel do not contradict or even meet that evidence.
17That a mirror recognition petition or majority of authorization cards would not require initial
employer recognition of a new union is notable. See Linden Lumber, 190 NLRB 718 (1971),
approved, Linden Lumber v. NLRB, 419 U.S. 301 (1974). However, the policy concerns
animating that anomaly, such as they are, should not be viewed as a rejection of employee
petitions as a method of ascertaining employee sentiment. Employee petitions, cards, and
written assertions of representation desires have long been accepted as a reliable expression of
employee sentiment.

18If 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
purposes.
JD–53–12
15
ORDER
5
The complaint is dismissed.
Dated, Washington, D.C. September 26, 2012 10
____________________
David I. Goldman
U.S. Administrative Law Judge