Hospital Metropolitan

National Labor Relations Board - Board Decisions

Jul 16, 2001

334 N.L.R.B. 555 (N.L.R.B. 2001)

HOSPITAL METROPOLITANO 555
Metro Health, Inc., d/b/a Hospital Metropolitano and
Unidad Laboral de Enfermeras (os) y Em-
pleados de la Salud. Case 24–CA–8149
July 16, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On September 29, 2000, Administrative Law Judge
George Alemán issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief and a brief in
support of the administrative law judge’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order as modified.1
The judge found that the Respondent violated Section
8(a)(5) of the Act by withdrawing recognition from and
refusing to bargain with the Union as the representative
of the Respondent’s employees in six bargaining units.
For the reasons discussed below, we agree with the
judge’s finding.
The facts, which are undisputed, are set forth in detail
in the judge’s decision. In brief, the Union was certified
as the representative of the employees of the Respon-
dent’s predecessor in 1996. The Union and the predeces-
sor engaged in collective bargaining but failed to con-
clude an agreement. The Respondent acquired the prede-
cessor’s assets on March 11, 1998,2 and commenced bar-
gaining with the Union on April 3. The last bargaining
session took place on September 17. The Respondent
withdrew recognition on December 3, stating that it had
reason to believe that the Union no longer had the sup-
port of a majority of the employees.
During the year following its certification, a union en-
joys an irrebuttable presumption of majority support.3 At
the end of the certification year, the presumption remains
but is rebuttable.4 Under the controlling law at the time
of the relevant events here, an employer could rebut the
presumption by showing either that the union had, in
fact, lost the support of a majority of the unit employees,
or that the employer had a good-faith reasonable doubt
(uncertainty), based on objective evidence, of the union’s
majority status.5 The Respondent does not contend that
the Union had actually lost majority support. Further,
the judge found, and we agree, that the Respondent has
not established that it had a good-faith reasonable doubt
(uncertainty) regarding the Union’s majority status.6

1 We shall modify the judge’s Order and notice to accurately reflect
the scope of one of the bargaining units.
2 Unless otherwise stated, all dates refer to 1998.
3 See, e.g., Burger Pits, 273 NLRB 1001 (1984), enfd. 785 F.2d 796
(9th Cir. 1986).
4 Id.
The Respondent relied on several factors in withdraw-
ing recognition, including a group of decertification peti-
tions that were filed with the Board on August 20 and
presented to the Respondent on August 21. Those peti-
tions were signed by only one unit employee, but they
were accompanied by an earlier petition, dated April 21,
that was signed by a large number of unit employees.
The April 21 petition stated:

The undersigned below, all of the employees of
Hospital Metropolitano, disallow Mr. Radames Qui-
ñones Aponte to represent us or to bargain any em-
ployment condition in our name. In addition, we
will not authorize check-off dues [sic] in favor of
[the Union] as an employment condition.
This is our firm and voluntary decision.

The Respondent also relied on a demonstration that oc-
curred outside the facility on June 21, as well as the fact that
no unit employee had taken part in negotiations since July.
5 Id. The Board historically phrased the latter standard in terms of
good-faith doubt—by which it meant disbelief—as to the union’s major-
ity status. In Allentown Mack Sales & Service v. NLRB, 522 U.S. 359,
367 (1998), however, the Supreme Court held that “doubt” means
uncertainty, not disbelief.
In Levitz, 333 NLRB 717 (2001), 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. However, the Board found it appropriate not to
apply the new standard retroactively to pending cases such as this, but
only prospectively. Accordingly, the Respondent here need only show
that it had a good-faith reasonable uncertainty as to the Union’s major-
ity support at the time it withdrew recognition.
In Levitz, Chairman Hurtgen disagreed with the Board’s overruling
the principle that an employer can withdraw recognition from an in-
cumbent union if the employer has a good-faith uncertainty as to the
union’s majority status. Therefore, he agrees with the application of
this principle in the present case.
6 In St. Elizabeth Manor, Inc., 329 NLRB 341 (1999), the Board held
that, once a successor employer’s obligation to recognize an incumbent
union has attached, the union is entitled to a reasonable period of time
for bargaining without challenge to its majority status through a decerti-
fication effort, an employer (RM) petition, or a petition from a rival
union. However, there is no allegation here that the Respondent’s
withdrawal of recognition was invalid because bargaining had not taken
place for a reasonable period of time.
Chairman Hurtgen dissented from the rule adopted by the Board in
St. Elizabeth Manor, Inc., that bars challenges to a union’s majority
status for a reasonable period of time following the point at which a
successor employer’s obligation to recognize an incumbent union at-
taches.
334 NLRB No. 75
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
In addition, the Respondent argued to the judge that the
Union’s refusal to negotiate since September 17 indicated
that it no longer desired to represent the employees.7
We agree with the judge that, whether considered indi-
vidually or cumulatively, the factors relied on by the Re-
spondent 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 sign-
ers were displeased with Quiñones as their representative
at the bargaining table, not with the Union itself.8
Moreover, the petition was executed some 7 months be-
fore the December 3 withdrawal of recognition. Such
stale evidence is not a reliable indicator of the employ-
ees’ union sentiments at the time recognition was with-
drawn.9 This is especially true since there were signifi-
cant changed circumstances between the April petition
and the December withdrawal of recognition. Quiñones
had been replaced as the Union’s negotiator in July,
when Arturo Grant became the Union’s sole representa-
tive in negotiations. Thus, the employees’ earlier state-
ments indicating unhappiness with Quiñones were not a
reasonable basis for questioning the Union’s majority
support in December, when the Respondent 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 ir-
relevant to the issue of whether they support the union.10

7 In its December 3 letter, the Respondent noted the Union’s lack of
“affirmative action” to continue negotiations; however, it did not ex-
plicitly cite that factor as a basis for doubting the Union’s majority
status.
8 In fn. 5 of his decision, the judge stated that the record does not
make clear who Quiñones was. In fact, the record indicates that he was
the Union’s executive director. There is no contention, however, and
no evidence that Quiñones was the alter ego or personification of the
Union. Thus, we cannot infer that opposing him was tantamount to
opposing the Union.
In Allentown Mack, the Supreme Court held that employees’ expres-
sions of dissatisfaction with the quality of representation provided by
the union “could be probative to some degree” of the employer’s good-
faith reasonable doubt or uncertainty. 522 U.S. at 369. Because Qui-
ñones was the Union’s executive director and negotiator at the time of
the April petition, the employees’ expressions of dissatisfaction with
him could be interpreted as dissatisfaction with the quality of represen-
tation provided by the Union. However, as discussed infra, even as-
suming that the petition was therefore “probative to some degree” of
employee sentiment in April, we find that the April petition was stale
and that circumstances had significantly changed at the time Respon-
dent withdrew recognition in December.
9 See, e.g., Rock-Tenn Co., 315 NLRB 670, 672 (1994), enfd. 69
F.3d 803 (7th Cir. 1995), overruled on other grounds in Chelsea Indus-
tries, 331 NLRB 1648 (2000).
10 See, e.g., Henry Bierce Co., 328 NLRB 646, 648 (1999), enfd. in
relevant part mem. 234 F.3d 1268 (6th Cir. 2000).
Chairman Hurtgen expresses no view as to the correctness of Henry
Bierce Co.
As the 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 representa-
tion without joining the union and paying dues.
Finally, as the judge found, the Respondent overstated
the percentages 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 months before it withdrew recognition on Decem-
ber 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.11 The 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.12
We also agree with the judge that the August 20 decer-
tification petitions themselves did not justify the with-
drawal. A decertification petition by itself will not sup-
port withdrawal of recognition because such petitions
require the support of only 30 percent of the unit em-
ployees.13 Here, as the judge found, aside from the April
21 petition discussed above, there is no evidence of the
extent of employee support for the petitions.14
11 The parties disagreed about the number of employees that should
be included in some of the units. Because we find that the number of
employees who signed the April 21 petition is irrelevant, we find it
unnecessary to resolve the dispute over the makeup of the units.
12 See, e.g., Virginia Concrete Co., 316 NLRB 261 (1995), enfd. 75
F.3d 974 (4th Cir. 1996). There, the Board found that the employer
ignored lists and numbers prepared by its personnel manager in order to
conclude that the bargaining unit was smaller than it actually was, and
thus premised its withdrawal of recognition on faulty reasoning. In
those circumstances, the Board questioned the employer’s good faith in
approaching the employee count. 316 NLRB at 268. We recognize
that the Board in Levitz found that the employer had a good-faith uncer-
tainty, based on an employee petition, as to the union’s continued ma-
jority status even though the employer refused to review the union’s
evidence purportedly showing that it retained majority support. The
Board reasoned that, even if the union’s evidence had indicated contin-
ued majority support, the employer still could have harbored a reason-
able uncertainty based on conflicting evidence. 333 NLRB 717. Lev-
itz, however, there was no contention that the petition on which the
employer relied was unreliable in itself, that is, that it was based on
faulty information or assumptions by the employer. Here, by contrast,
the Respondent relied on information that it would have realized was
flawed, had it attempted to verify that information. It is the failure to
verify its own information that we find to indicate a lack of good faith.
13 See, e.g., Dresser Industries, 264 NLRB 1088, 1088 (1982).
14 For the reasons discussed above, the April 21 petition, which was
submitted with the August 20 decertification petitions, does not indicate
that the Union had lost majority support on August 20.
HOSPITAL METROPOLITANO 557
With respect to the June 21 demonstration, we find
that it was also too remote in time from the December 3
withdrawal of recognition. In any event, as the judge
found, the record does not indicate the reason for the
demonstration,15 how many employees participated, or
even whether the participants were unit employees. Ab-
sent such information, we are unable to conclude that the
June demonstration could reasonably create uncertainty
as to the Union’s majority status in December.16
We also find that the lack of unit employee participa-
tion in negotiations is not evidence of loss of majority
status.17 As the judge noted, employees may not want to
take part in negotiations because they fear being identi-
fied as union supporters, because negotiating sessions
conflict with their work schedules,18 or for other reasons
that have nothing to do with their support for the union.
Finally, the bargaining hiatus after September 17 does
not mean that the Union had lost interest in representing
the employees. The Board has held that, to base a claim
of good-faith uncertainty on the absence of union activ-
ity, an employer must show that the union was neither
willing nor able to represent the employees at the time its
majority status was questioned.19 The Respondent made
no such showing here. As the judge found, the Union
made two information requests during the bargaining
hiatus. And on October 26, the Union requested access
to the Respondent’s facility to distribute a union newspa-
per. Thus, contrary to the Respondent, the Union contin-
ued to actively represent the employees even while no
negotiations were being conducted. In any event, the
September 17–December 3 bargaining hiatus was too
brief to support the Respondent’s withdrawal of recogni-
tion.20 Thus, we agree with the judge that the Union
abandoned neither the employees nor the negotiations.
In sum, we find that the Respondent produced no evi-
dence that would even arguably indicate that the Union
had lost majority support as of December 3. It relies
instead on 7-month-old statements of dissatisfaction with
a union official who had long since been replaced as the
Union’s negotiator, a demonstration of some kind that

15 As noted by the judge, the record simply indicates that the Union
and a group of Hospital employees held opposing demonstrations and
press conferences outside the facility. The stipulated record is silent as
to why the counterdemonstrations and press conferences were held.
16 See, e.g., Allied Industrial Workers v. NLRB, 476 F.2d 868, 881
(D.C. Cir. 1973).
17 See, e.g., Beverly Farm Foundation, 323 NLRB 787, 794 (1997),
enfd. 144 F.3d 1048 (7th Cir. 1998).
18 Here, the bargaining sessions were held during business hours at a
location away from the hospital.
19 Pennex Aluminum Corp., 288 NLRB 439, 441–442 (1988), enfd.
mem. 869 F.2d 590 (3d Cir. 1989).
20 See, e.g., Spillman Co., 311 NLRB 95 (1993), enfd. mem. 41 F.3d
1507 (6th Cir. 1994) (6-month hiatus insufficient).
took place more than 5 months before the withdrawal
and which may or may not have been supported by any
unit employees, and other factors that either did not exist
(the Union’s asserted lack of interest in representing em-
ployees) or are simply not evidence of loss of majority
status (lack of employee participation in contract negotia-
tions, the mere filing of a decertification petition, and
employee opposition to dues checkoff). Whether con-
sidered individually or cumulatively, we find that these
factors fall short of establishing a good-faith reasonable
doubt or uncertainty of the Union’s continued majority
status in any of the bargaining units at the time of the
Respondent’s withdrawal of recognition. We therefore
affirm the judge’s finding that the Respondent’s with-
drawal of recognition was unlawful.
Finally, we also agree with the judge, for the reasons
fully set forth in Caterair International, 322 NLRB 64
(1996), that an affirmative bargaining order is warranted
in this case as a remedy for the Respondent’s unlawful
withdrawal of recognition from the Union. We adhere to
the view, reaffirmed by the Board in that case, that an
affirmative bargaining order is “the traditional, appropri-
ate remedy for an 8(a)(5) refusal to bargain with the law-
ful collective bargaining representative of an appropriate
unit of employees.” Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
that the Board justify, on the facts of each case, the im-
position of such an order. See, e.g., Vincent Industrial
Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (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 Vin-
cent, the court stated that an affirmative bargaining order
“must be justified by a reasoned analysis that includes an
explicit balancing of three considerations: (1) the em-
ployees’ § 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” 209
F.3d at 738.
We respectfully disagree with the court’s requirement,
for the reasons set forth in Caterair.21 Nevertheless, we
have examined the particular facts of this case as the
court requires, and we find that a balancing of the three
factors warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful withdrawal of recognition. At the
21 Chairman Hurtgen agrees with the court’s requirement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
same time, an affirmative bargaining order does not un-
duly prejudice the Section 7 rights of employees who
may oppose continued union representation because its
attendant bar to raising a question concerning the Un-
ion’s continuing majority status is no longer than is rea-
sonably necessary to remedy the ill effects of the viola-
tion.
By unlawfully withdrawing recognition, the Respon-
dent clearly signaled to the employees its disregard for
their collective-bargaining representative. Although
more than 2 years have elapsed since it occurred, the
Respondent’s unlawful withdrawal of recognition would
likely have a continuing and long-lasting negative effect
on employee support for the Union and for collective
bargaining altogether.
(2) An affirmative bargaining order also serves the im-
portant policies of the Act to foster meaningful collective
bargaining and industrial peace. The temporary decerti-
fication bar inherent in this order removes the Respon-
dent’s incentive to delay bargaining or to engage in any
other conduct that would further undercut employee sup-
port for the Union. It also ensures that the Union will not
be pressured, by the possibility of a decertification peti-
tion, to achieve immediate results at the bargaining table
following the Board’s resolution of its unfair labor prac-
tice charges and issuance of a cease-and-desist order.
Providing this temporary period of insulated bargaining
will also afford employees a fair opportunity to assess
the Union’s performance in an atmosphere free of the
Respondent’s unlawful conduct.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent had afforded the employees a reasonable time to
regroup and bargain through their chosen representative
in an effort to reach a collective-bargaining agreement.
Such a result would be particularly unfair here, where the
Respondent’s unlawful conduct is likely to have a con-
tinuing effect, thereby tainting any employee disaffection
from the Union arising during that period or immediately
thereafter. Indeed, permitting a decertification petition to
be filed immediately might very well allow the Respon-
dent 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 representation by
the Union.
For all of the foregoing reasons, we find that an af-
firmative bargaining order with its temporary decertifica-
tion bar is necessary to fully remedy the Respondent’s
unlawful refusal to bargain with the Union in this case.22
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Metro
Health, Inc., d/b/a Hospital Metropolitano, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to recognize and bargain with Unidad
Laboral de Enfermeras (os) y Empleados de la Salud as
the exclusive collective-bargaining representative of its
employees in the following appropriate units:
Unit A
All Licensed Practical Nurses, Operating Room Tech-
nicians, X-Ray Technicians, Respiratory Therapy Tech-
nicians and Auxiliary Pharmacists; excluding all other
employees, secretaries of the executive director, medical
director, comptroller, nursing director, plant and mainte-
nance director, director of personnel and medical faculty,
temporary employees, messengers, guards, and supervi-
sors as defined in the Act.
Unit B
All registered nurses, excluding all other employees,
secretaries of the executive director, medical director,
comptroller, nursing director, plant and maintenance di-
rector, director of personnel and medical faculty, tempo-
rary employees, messengers, guards, and supervisors as
defined in the Act.
Unit C
All orderlies, ward clerks, office clerks, medical re-
cords technicians and/or clerks transcribers, EKG techni-
cians, supply technicians, laboratory aides, printing of-
fice employees, telephone operators, warehouse clerks,
and pharmacy clerks; excluding all other employees,
secretaries of the executive director, medical director,
comptroller, nursing director, plant and maintenance di-
rector, director of personnel and medical faculty, tempo-
rary employees, messengers, guards, and supervisors as
defined in the Act.

22 Chairman Hurtgen agrees that, based on the conduct in the instant
case, an affirmative bargaining order is appropriate. The reasons the
Respondent asserted for withdrawing recognition from the Union were
insubstantial, and the Respondent’s unwarranted withdrawal of recogni-
tion would diminish the Union in the eyes of the employees. In these
circumstances, it is appropriate to give the Union a reasonable period in
which to regain the status that it enjoyed before the Respondent’s
unlawful conduct.
HOSPITAL METROPOLITANO 559
Unit D
All business office employees, billing and collector
clerks, cashiers, inventory control clerks, and accounting
clerks; excluding all other employees, secretaries of the
executive director, medical director, comptroller, nursing
director, plant and maintenance director, director of per-
sonnel and medical faculty, temporary employees, mes-
sengers, guards, and supervisors as defined in the Act.
Unit E
All dietary employees, linen supply employees, main-
tenance employees, housekeeping employees, and driv-
ers; excluding all other employees, secretaries of the ex-
ecutive director, medical director, comptroller, nursing
director, plant and maintenance director, director of per-
sonnel and medical faculty, temporary employees,
guards, and supervisors as defined in the Act.
Unit F
All pharmacists and medical technologists; excluding
all other employees, secretaries of the executive director,
medical director, comptroller, nursing director, plant and
maintenance director, director of personnel and medical
faculty, temporary employees, messengers, guards, and
supervisors as defined in 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

WE WILL NOT refuse to recognize and bargain with
Unidad Laboral de Enfermeras(os) y Empleados de la
Salud as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining units.
Unit A
All Licensed Practical Nurses, Operating Room
Technicians, X-Ray Technicians, Respiratory Ther-
apy Technicians and Auxiliary Pharmacists; exclud-
ing all other employees, secretaries of the executive
director, medical director, comptroller, nursing di-
rector, plant and maintenance director, director of
personnel and medical faculty, temporary employ-
ees, messengers, guards, and supervisors as defined
in the Act.
Unit B
All registered nurses, excluding all other em-
ployees, secretaries of the executive director, medi-
cal director, comptroller, nursing director, plant and
maintenance director, director of personnel and
medical faculty, temporary employees, messengers,
guards, and supervisors as defined in the Act.
Unit C
All orderlies, ward clerks, office clerks, medical
records technicians and/or clerks transcribers, EKG
technicians, supply technicians, laboratory aides,
printing office employees, telephone operators,
warehouse clerks, and pharmacy clerks; excluding
all other employees, secretaries of the executive di-
rector, medical director, comptroller, nursing direc-
tor, plant and maintenance director, director of per-
sonnel and medical faculty, temporary employees,
messengers, guards, and supervisors as defined in
the Act.
Unit D
All business office employees, billing and collec-
tor clerks, cashiers, inventory control clerks, and ac-
counting clerks; excluding all other employees, sec-
retaries of the executive director, medical director,
comptroller, nursing director, plant and maintenance
director, director of personnel and medical faculty,
temporary employees, messengers, guards, and su-
pervisors as defined in the Act.
Unit E
All dietary employees, linen supply employees,
maintenance employees, housekeeping employees,
and drivers; excluding all other employees, secretar-
ies of the executive director, medical director, comp-
troller, nursing director, plant and maintenance di-
rector, director of personnel and medical faculty,
temporary employees, guards, and supervisors as de-
fined in the Act.
Unit F
All pharmacists and medical technologists; ex-
cluding all other employees, secretaries of the execu-
tive director, medical director, comptroller, nursing
director, plant and maintenance director, director of
personnel and medical faculty, temporary employ-
ees, messengers, guards, and supervisors as defined
in the Act.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
WE WILL, on request, bargain with the Unidad Labo-
ral de Enfermeras (os) y Empleados de la Salud and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the
above bargaining units.

METRO HEALTH, INC., D/B/A HOSPITAL
METROPOLITANO

Laura Vázquez, Esq., for the General Counsel.
José R. González and Jorge Pizarro García, Esqs., for the Re-
spondent.
Radames Quiñones Aponte, for the Charging Party.
DECISION
GEORGE ALEMÁN, Administrative Law Judge. This mat-
ter came to be heard in Hato Rey, Puerto Rico, on June 28,
2000, following a charge filed by the Charging Party, Unidad
Laboral de Enfermeras (os) y Empleados de la Salud (the Un-
ion or ULEES), on November 5, 1998 (amended February 24,
1999), and issuance of a complaint on May 28, 1999, by the
Regional Director for Region 24 of the National Labor Rela-
tions Board (the Board). The complaint alleges that the Re-
spondent, Metro Health, Inc., d/b/a Hospital Metropolitano,
violated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by withdrawing recognition from, and thereafter
failing and refusing to bargain collectively and in good faith
with, the Union representing its employees. By answer dated
June 16, 1999, the Respondent admits withdrawing recognition
from the Union but denies that its conduct was in any way
unlawful or violative of the Act, arguing instead that its actions
were legitimately motivated by a good-faith doubt that the Un-
ion enjoyed majority support among its employees.
All parties at the hearing were afforded full opportunity to
call and examine witnesses, to submit oral and written evi-
dence, and to argue orally on the record. However, at the start
of the hearing, the parties entered into a stipulation of facts and
agreed not to call any witnesses in support of their respective
positions. Instead, they agreed that the merits of their positions
should be determined solely on the basis of the documentary
evidence submitted with their stipulation of facts.1 On the basis
of the stipulated record, and after considering briefs filed by the
General Counsel and the Respondent,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Puerto Rico corporation, with an office
and facility in Rio Piedras, Puerto Rico, is in the business of
providing health care services. During the 12-month period
preceding issuance of the complaint, the Respondent’s gross
revenues exceeded $250,000, and, during the same period, it
purchased and received goods and materials valued in excess of
$50,000 directly from points and places located outside the

1 The parties’ stipulation was received into evidence as GC Exh. 2;
the supporting documents were received as Jt. Exhs..
2 The General Counsel’s brief and the Respondent’s brief are re-
ferred to respectively as “GC Br.” and “R Br.”
Commonwealth of Puerto Rico. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Stipulated Facts
In 1996, the Union was certified by the Board as the exclu-
sive collective-bargaining representative of six separate units of
employees, identified here as units A, B, C, D, E, and F, em-
ployed by Fundación Hospital Metropolitano, Inc., the Respon-
dent’s predecessor, at the Rio Piedras, Puerto Rico facility.3
Following certification, the Union and the predecessor engaged
in negotiations but failed to reach agreement. On March 11,
1998,4 the Respondent acquired the predecessor’s assets and
began operating the Rio Piedras facility in unchanged form and
became employer of the predecessor’s employees. On March
23, the Respondent, through its attorney, Jorge Pizarro, notified
the Union that it wished to initiate bargaining. Negotiations
thereafter began on April 3, and continued through September.
The parties stipulated that bargaining on behalf of the Union
during these negotiations was conducted by nonemployee union
representatives. However, it does appear from paragraph 8 of
the stipulation that the Union’s bargaining committee included
at least one employee, Anibal Pérez.

On April 21, numerous employees in the various units signed
the following petition:

The undersigned below, all of them employees of hospital
Metropolitano, disallow Mr. Radames Quiñones Aponte to
represent us or to bargain any employment condition in our
name. In addition, we will not authorize dues check-off in fa-
vor of ULEES as an employment condition.5

3 Unit A includes: all Licensed Practical Nurses, Operating Room
Technicians, X-Ray Technicians, Respiratory Therapy Technicians and
Auxiliary Pharmacists. Unit B includes: all Registered nurses. Unit C
includes: all orderlies, ward clerks, office clerks, medical records tech-
nicians and/or clerks transcribers, EKG technicians, supply technicians,
laboratory aides, printing office employees, telephone operators, ware-
house clerks, and pharmacy clerks. Unit D includes: all business office
employees, billing and collector clerks, cashiers, inventory control
clerks, and accounting clerks. Unit E includes: all dietary employees,
linen supply employees, maintenance employees, housekeeping em-
ployees, and drivers. Unit F includes: all pharmacists and medical
technologists. Excluded from all of the above units are all other em-
ployees, secretaries of the executive director, medical director, comp-
troller, nursing director, plant and maintenance director, director of
personnel and medical faculty, temporary employees, messengers,
guards, and supervisors as defined in the Act.
4 Unless otherwise indicated, all dates are in 1998.
5 There is no indication in the record that Ruberté received the peti-
tion at any time before August 21, when, as discussed infra, certain
unidentified employees handed him the petition together with several
decertification petitions that had been filed with the Board the day
before. While the record does not make clear who Quiñones was, or
what his role may have been in the negotiations, the parties are in ap-
parent agreement that Quiñones was a union official. (GC Br. 8; R Br.
13.)
HOSPITAL METROPOLITANO 561
The petition, containing eight pages of employee signatures,
was addressed to Respondent’s administrator, Henry Ruberté.
(See Jt. Exhs. 3 & 3[a].) There is no indication in the record,
however, that Ruberté received the petition at any time prior to
August 21, at which time the April 21 petition, as noted below,
was delivered to Ruberté together with several decertification
petitions which Pérez had filed with the Board on August 20.
On June 21, while negotiations were still ongoing, the Union
and a group of hospital employees held opposing demonstra-
tions and press conferences outside the facility. The stipulated
record, however, is silent as to the reason behind the Union’s
demonstration, and as to why the counterdemonstrations and
press conferences were held. Nor does it reveal how many, or
which, employees took part in the counterdemonstrations, e.g.,
whether they were ULEES-represented bargaining unit mem-
bers or nonunit employees. Sometime in July, Arturo Grant
became the Union’s sole representative at the negotiations. It is
unclear, however, if Grant was put in that position in response
to the employees’ April 21 petition.
As noted previously, on August 20, Pérez filed separate de-
certification petitions with the Board seeking to have the Union
removed as the exclusive bargaining agent of the Respondent’s
employees in all six bargaining units, submitting, in support
thereof, the April 21 employee petition.6 As further noted, the
next day, several employees met with Ruberté and provided
him with copies of the decertification petitions and the April 21
petition. The stipulation does not disclose how many employ-
ees attended this meeting, whether they were unit or nonunit
employees, what, if anything, was said by these unidentified
employees to Ruberté, or whether any conversation in fact took
place.
The parties’ last bargaining session was between Pizarro and
Grant on September 17. While the parties agree that Grant
ended the meeting, an exchange of letters following that meet-
ing reveals disagreement over why Grant suspended negotia-
tions that day. Thus, in a September 17 letter, and again in a
December 3 letter, Pizarro asserts that Grant suspended the
negotiations pending the Board’s resolution of certain unfair
labor practice charges the Union had filed against the Respon-
dent. In apparent disagreement with Pizarro, Grant in a De-
cember 16 letter, accuses Pizarro of “distorting the data and
facts regarding the negotiations,” and avers that it was the Re-
spondent’s bad-faith bargaining stemming from its change of
position regarding proposals previously agreed on by the par-
ties, as well as Pizarro’s “arrogant and disparaging attitude”
towards him, which prompted him, Grant, to end the September
17 bargaining session.7
On September 30 and October 13, the Union submitted writ-
ten requests for information to the Respondent (Jt. Exhs. 5[a],
6[a]). By letter dated November 13, the Respondent denied the
Union’s requests on grounds that the parties did not have a
collective-bargaining agreement, and because the parties were
not engaged in collective bargaining due to the Union’s refusal
to meet with “the employer’s bargaining committee.” The
letter advised the Union that the information would not be pro-

6 See GC Exh. 2 at par. 9.
7 See Jt. Exhs. 4(a), 11(a), and 12(a).
vided “until the negotiations start again” at which time the Re-
spondent would “evaluate the relevancy of each one of the
documents” sought by the Union. (J. Exh. 10[a].) On Novem-
ber 5, the Union filed the charge in this case alleging, inter alia,
that the Respondent had violated the Act by refusing to furnish
it with the requested information (GC Exh. 1[a]).
By letter dated December 3, the Respondent informed the
Union it was withdrawing its recognition of ULEES because it
had reason to believe, based on the occurrence of several
events, that ULEES no longer enjoyed the support of a majority
of its unit employees. To support its claim that the Union no
longer enjoyed majority support, the Respondent inserted in the
letter a chart reflecting the number of employees in each unit
who had signed the April 21 petition, and what percentages
they represented of the total number of employees in each unit.8
The events cited by the Respondent in its letter in support of its
good-faith doubt included the decertification petitions it re-
ceived from employees on August 21, along with the April 21
petition signed by employees,9 the counterdemonstrations held
by employees on June 21, during the Union’s own demonstra-
tion, and the fact that since July, Grant had been the Union’s
sole negotiator and that no employee had participated in those
negotiations. By letter dated December 17, the Union re-
sponded to the Respondent’s December 3 letter, accusing it of
engaging in bad-faith bargaining, and insisting that the Union
was willing to continue bargaining if the Respondent were to
do so in good faith, and requesting that the negotiations be
resumed. The letter advises the Respondent that ULEES had
set aside December 24, for the resumption of such bargaining.
(Jt. Exh. 12[a].) Pizarro responded to the Union’s letter with
another letter dated December 21, reiterating the position taken
in his previous letters that it was the Union, not the Respondent,
that had refused to conduct any further negotiations until after
the unfair labor practice charges had been resolved, and reaf-
firming the Respondent’s decision to withdraw recognition
from the Union. (Jt. Exh. 13[a].)
On February 24, 1999, the Union, as noted, filed an amended
charge alleging, inter alia, the Respondent’s December 3 with-
drawal of recognition and refusal to bargain as unlawful (Jt.
8 According to the percentage data provided to the Union by the Re-
spondent in its December 3 letter, 67 percent of employees in unit A,
56 percent in unit B, 59 percent in unit C, 73 percent in unit D, 81
percent in unit E, and 57 percent in unit F, signed the April 21 petition.
However, on brief (R Br. 14), the Respondent concedes that the per-
centage figures listed in its December 3 letter, and on which it pre-
sumably relied, in part, to justify its withdrawal of recognition, were
wrong.
9 The December 3 letter contained certain factual misrepresentations.
Thus, contrary to the letter’s claim that “a considerable number of
employees” and “several original members of the Union’s bargaining
committee” had signed the petition for decertification, only ň’ name
appears on the decertification petitions. Further, the Respondent on
brief concedes that the percentages shown in the December 3 letter of
employees who signed the April 21 petition and who, in its view, no
longer supported the Union, were incorrect. Thus, it admits that the
“actual percentages were less than originally calculated by the hospital”
(R Br. 14).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
Exh. 1[c]).10 By letters dated June 3 and 7, 1999, the Union
again requested bargaining, but by letter dated June 12, the
Respondent again refused to do so, suggesting instead that the
Union petition the Board for an election “to determine if in fact
the majority of the employees want to continue being repre-
sented by ULEES.” (Jt. Exhs. 14[a], 15[a], and 16[a].) The
General Counsel, as noted, contends, and the Respondent de-
nies, that the withdrawal of recognition and refusal to bargain
was unlawful.
Discussion
The legal principles applicable here are fairly straightforward
and well established. Thus, following expiration of a union’s
certification year, the union’s irrebuttable presumption of ma-
jority status becomes a rebuttable one. Burger Pits, 273 NLRB
1001 (1984). To rebut that presumption, an employer must
show, by a preponderance of evidence, either (1) an actual loss
of majority support, or (2) objective factors sufficient to sup-
port a reasonable and good-faith doubt of the union’s majority
support. Id., also, Laidlaw Waste Systems, 307 NLRB 1211
(1992); Hajoca Corp., 291 NLRB 104 (1988). An employer’s
unfounded speculation or a subjective state of mind will not
suffice to satisfy a reasonable doubt defense. National Uphol-
stering Co., 311 NLRB 1204 (1993), quoting from Bickerstaff
Clay Products Co. v. NLRB, 871 F.2d 980, 985 (11th Cir.
1989). Applying these principles to the case at hand, I find that
the factors cited by the Respondent, whether viewed separately
or in combination, would not have given the Respondent reason
to doubt the Union’s majority status or justified its withdrawal
of recognition.11
The Respondent, as noted, based its withdrawal of recogni-
tion, in part, on the decertification petitions filed by Pérez on
August 20, and on the April 21 petition. It asserts, on brief (R
Br. 12–13) that the fact that the decertification petitions were
signed by a member of the Union’s bargaining committee, and
were accompanied by the eight-page April 21 petition contain-
ing the signatures of unit employees, was sufficient to raise a
good-faith reasonable doubt as to the Union’s majority status.
(R Br. 12–13.) I disagree.
Regarding the April 21 petition, I find nothing in its wording
to suggest that employees were either repudiating the Union as
their bargaining representative or lending support to a decertifi-
cation drive. Rather, as described above, the April 21 petition
is, on its face, nothing more than a statement of opposition by
certain unit employees to Quiñones, presumably a union agent,
representing them or to bargain on their behalf in contract talks
between the parties, and to having dues checkoff made a condi-
tion of employment. Notwithstanding the April 21 petition’s
rather clear and precise language, the Respondent would have
me believe that the employees’ “dissatisfaction and disap-

10 Although the charge and amended charge also alleged that the Re-
spondent violated Sec. 8(a)(5) and (1) by refusing to provide the Union
with relevant information, promulgating and enforcing an overly broad
no-solicitation rule, and subcontracting bargaining unit work without
bargaining with the Union, the complaint, as noted, alleges only the
December 3 withdrawal of recognition as being unlawful.
11 The Respondent does not contend, nor does the stipulated record
show, that the Union in fact no longer enjoyed majority status.
proval” of Quiñones was also a reflection of their “dissatisfac-
tion and disapproval” of the Union itself (R Br. 13). I can draw
no such inference here, for the April 21 petition signers may
very well have had reasons, wholly unrelated to their personal
views on or sentiments toward the Union, for wanting Qui-
ñones removed as the Union’s negotiator. Employees, for ex-
ample, could simply have viewed Quiñones as an ineffective
negotiator; or Quiñones, for that matter, could have fallen into
disfavor with certain unit employees prompting the petition
drive to have him ousted as their representative at the bargain-
ing table. The Respondent, who, as noted, bears the burden of
establishing the Union’s loss of majority by a preponderance of
the evidence, has produced no evidence whatsoever on the
underlying reasons for the April 21 petition. Its assertion,
therefore, that those employees who signed the April 21 peti-
tion did so because they were dissatisfied with and disapproved
of Quiñones, like its claim that said “dissatisfaction and disap-
proval” of Quiñones constituted a similar rejection of the Union
as their bargaining representative, lacks evidentiary support,
and amounts to nothing more than speculation and conjecture.
However, assuming arguendo, that employees through the
April 21 petition were indeed conveying a “dissatisfaction and
disapproval” of Quiñones, such a statement of employee disaf-
fection with the Union’s choice of negotiator is not equivalent
to a withdrawal of employee support for the Union as their
exclusive bargaining representative. See, e.g., Torch Operating
Co., 322 NLRB 939, 943 (1997); Phoenix Pipe & Tube Co.,
302 NLRB 122 (1991); Destileria Serrales, 289 NLRB 51
(1988), enfd. 882 F.2d 19 (1st Cir. 1989); also Briggs
Plumbingware, Inc. v. NLRB, 877 F.2d 1282, 1288 (6th Cir.
1989); Retired Persons Pharmacy v. NLRB 519 F.2d 486 (2d
Cir. 1975). As long held by the Board, employee conduct of-
fered by an employer to sustain a reasonable doubt defense
“must demonstrate a clear intention by the employees not to be
represented by the union.” Ambac International, 299 NLRB
505, 506 (1990). No such clear intention is evident here from
the petition language calling for Quiñones’ removal.
Nor was the Respondent justified in assuming that employ-
ees no longer supported the Union because employees signing
the April 21 petition opposed a dues-checkoff requirement, for
the Board has long held that the fact that less than a majority
have authorized such checkoffs is immaterial to the issue of
majority status.12 Gulfmont Hotel Co., 147 NLRB 997, 1001–
1002 (1964), enfd. 362 F.2d 588 (5th Cir. 1966). Tesoro Petro-
leum Corp., 174 NLRB 1285 (1969), enfd. 431 F.2d 95 (9th
Cir. 1970). National Cash Register Co., 201 NLRB 1034
(1973); Harpeth Steel, Inc., 208 NLRB 545 (1974); and Henry
Bierce Co. 328 NLRB 646 (1999). As pointed out by the
Board in Gulfmont Hotel Co., supra, there may be any number
of reasons, unrelated to their desire for union representation,
why employees may not want to have their dues checked off.
Thus, some employees may simply prefer, as a matter of prin-
ciple, to pay their financial obligations in person; others may
prefer to decide when and if they can afford to spare the money
for dues and fees. Still others might prefer to become “free
12 The Union’s majority status, as noted, was established by Board
certification, not by a dues-checkoff authorization count.
HOSPITAL METROPOLITANO 563
riders,” that is, vote for, accept, and enjoy the benefits of un-
ionization without paying the requisite fees and dues to the
union.
Thus, while the April 21 petition was used by Pérez to sup-
port the decertification petitions, I find that the Respondent was
not justified in assuming from that fact alone, or from anything
contained in the April 21 petition itself, that a majority of em-
ployees in the various units were no longer interested in being
represented by the Union and favored its decertification, for, as
found above, the April 21 petition reflects no such desire by
unit employees.13 Nor could the Respondent have assumed that
a majority of unit employees were supporting the decertifica-
tion drive from the fact that on August 21, the decertification
petitions and the April 21 petition were delivered to it by em-
ployees, for the record, as noted, does not reveal if the employ-
ees who delivered the petitions were unit or nonunit employees,
nor the number of employees who took part in that endeavor.
Having found that the Respondent was not justified in rely-
ing on the April 21 petition to support a good-faith doubt of the
Union’s majority status, there remains the question whether the
decertification petitions alone would have sufficed to create
such doubt and permit a lawful withdrawal of recognition. This
query, however, must be answered in the negative, for the
Board has long held that absent a showing that a majority of
employees supported it, a decertification petition, by itself,
cannot justify an employer’s withdrawal of recognition.
Dresser Industries, 264 NLRB 1088 (1982); also Alexander
Linn Hospital Assn., 288 NLRB 103, 107 (1988); Architectural
Woodwork Corp., 280 NLRB 930, 934 (1986); and Silver Spur
Casino, 270 NLRB 1067 (1984). Except for the rejected April
21 petition, the Respondent has presented no evidence to show
that the decertification petitions filed by Pérez on August 20,
had the support of a majority of employees in the respective
units. Accordingly, I find that the August 20, decertification
petitions did not afford the Respondent a good-faith reason to
doubt the Union’s majority status and to withdraw recognition.

13 Indeed, there is reason to doubt that a nexus between the April 21
petition and the decertification petitions was ever intended. Support for
this proposition can be found in the rather obvious fact that the April 21
petition predates the decertification by 4 months, and that the April 21
petition, as noted, makes no reference to the petition being used in
support of a decertification drive. While it is not known what employ-
ees who signed the April 21 petition may have been told about its pos-
sible use, they clearly would not have known from the language of the
petition itself that their signatures were to be used in furtherance of a
decertification drive. Given these facts, I find it highly unlikely that the
April 21 petition was ever intended to be used in support of the decerti-
fication petitions. The record, it should be noted, does not make clear
how Pérez obtained copies of the April 21 petition which, as indicated,
was addressed to Respondent’s administrator, Ruperté. Nor does it
explain why Pérez submitted the April 21 petition to the Board along
with the decertification petitions. There is, in this regard, no evidence
to indicate that Pérez was acting at the behest of those employees who
signed the April 21 petition. For these reasons, I view Pérez’ use of the
April 21 petition to bolster the decertification petitions with a high
degree of skepticism. Finally, given my finding that the language of
April 21 petition in no way reflected a lack of employee support for the
Union, I need not consider whether that petition was signed by a major-
ity of employees in the six bargaining units represented by the Union.
Nor has the Respondent shown that it was justified in doubt-
ing the Union’s continuing majority status from the fact that
certain employees held counterdemonstrations in response to
the Union’s June 21, demonstrations, for, as discussed above,
there is simply no evidence to indicate that unit employees took
part in, sponsored, or otherwise supported, said counterdemon-
strations. Thus, the assertions made by the Respondent on brief
regarding these counterdemonstrations are based only on sup-
position and conjecture. The Respondent, for example, asserts
that the June 21, demonstration held by ULEES was an attempt
by the Union to “ignite the lost spark in the employees it pur-
ported to represent.” The record, however, contains no mention
of the reasons for the Union’s June 21, demonstration. Nor is
there any reference in the record to the level of unit employee
support garnered by the Union for its demonstration, further
rendering unsubstantiated the Respondent’s additional claim
that the Union’s demonstration did not have the “warm sup-
port” of unit employees.
In fact, the only evidence of record concerning the events of
June 21, is found in paragraph 7 of the parties’ stipulation
which simply states that during ULEES’ demonstration,
counterdemonstrations were also held by a “group of hospital
employees.” The Respondent in this regard produced no evi-
dence to show why the counterdemonstrations were conducted
or who might have taken part in them. In the absence of such
evidence, I decline to speculate, as the Respondent would have
me do, that the counterdemonstrations were conducted by unit
employees and reflected their opposition to the Union. Accord-
ingly, I find without merit the Respondent’s claim that the June
21, counterdemonstrations afforded it a reasonable basis to
doubt the Union’s majority status and withdraw recognition.
Equally without merit is the Respondent’s further assertion
that the purported lack of employee participation in the negotia-
tions provided a sufficiently objective basis for doubting the
Union’s majority status. The Board, with court approval, has
long held that poor attendance at union meetings or even em-
ployee disinterest in participation in negotiations does not war-
rant an inference that employees do not desire continued union
representation. Beverly Farm Foundation, 323 NLRB 787, 794
(1997); enfd. 144 F.3d 1048 (7th Cir. 1998); Colonna’s Ship-
yard, 293 NLRB 136, 140 (1989); enfd. mem. 900 F.2d 250
(4th Cir. 1990) (per curiam); Pioneer Inn, 228 NLRB 1263,
1265 (1977), enfd. 578 F.2d 835 (9th Cir. 1978); North Ameri-
can Mfg. Co., 224 NLRB 1252, 1257–1258 (1976), enfd. 563
F.2d 894 (8th Cir. 1977); Also Pioneer Press, 297 NLRB 972,
995 (1990); Robinson Bus Service, 292 NLRB 70, 78 (1988);
KEZI-TV, 286 NLRB 1396, 1398 (1987); and Vaughan & Sons,
Inc., 281 NLRB 1082, 1085 (1986). As pointed out by the
court in NLRB v. North American Mfg., supra at 897, employee
disinterest in attending union meetings or, as in the instant case,
bargaining sessions, can be attributed to many causes. Em-
ployees, for example, may be reluctant to do so for fear of re-
vealing themselves as union supporters, see Beverly Farm
Foundation v. NLRB, supra at 1054, or, as the General Counsel
here correctly points out on brief, employees may simply have
found it difficult to attend the negotiations because of a con-
flicting work schedule. However, the fact of the matter is that
the Respondent has offered no evidence to support its theory
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
that employees did not attend because they no longer supported
the Union. Consequently, its argument in this regard, like the
other explanations offered in support of its good-faith doubt
defense, is based on pure speculation and is likewise rejected as
without merit.
Finally, the Respondent, on brief, suggests implicitly that the
Union is no longer interested in representing its employees,
asserting in this regard that the Union abandoned the bargaining
table on September 13, and thereafter refused to bargain with it,
and further has “not made any affirmative effort to renew the
negotiations” despite the Respondent’s willingness to do so.14 I
disagree. First, the Respondent is simply wrong in asserting
that the Union abandoned the negotiations when it ended the
September 17 bargaining session. As made clear by its De-
cember 13 letter to the Respondent requesting a December 24
session, and by its subsequent June 1999 letters, the Union
following the September 17 meeting, has remained ready and
willing to resume negotiations. Indeed, it appears that it was
the Respondent, not the Union, who, by its June 12, 1999 letter
responding to the Union’s June 3 and 7, 1999 requests for bar-
gaining, demonstrated its unwillingness to resume negotiations
by declining to bargain unless and until the Union consented to
a Board election and was recertified by the Board (Jt. Exh.
16[a]). Thus, while the Union may have walked out of the
September 17 bargaining session, I find no evidence to indicate
that it was totally abandoning the negotiations or in any way
relinquishing its right to continue serving as exclusive bargain-
ing representative of the Respondent’s unit employees. The
Union’s subsequent September 30 and October 13 requests for
information makes clear that the Union continued to actively
represent those employees.
In sum, I find that the Respondent has not met its burden of
showing that it had a reasonably based good-faith doubt of the
Union’s majority status when it withdrew recognition and re-
fused to bargain further with the Union on December 3. Ac-
cordingly, its withdrawal of recognition and refusal to bargain
amounted to a violation of Section 8(a)(5) and (1) of the Act, as
alleged.15

14 The Respondent is raising this defense for the first time on brief,
as its December 3 letter makes no mention of the Union’s alleged aban-
donment of the unit as a ground for its withdrawal of recognition and
refusal to bargain.
15 Contrary to the Respondent, the Supreme Court’s holding in
Allentown Mack Sales & Service. v. NLRB, 522 U.S. 359 (1998), does
not require a different result. Initially, it should be noted that Allentown
Mack did not make new law but merely restated and clarified the law
on good-faith doubt which had existed for some time. Catalina Pacific
Concrete Co., 330 NLRB 144 (1999), Thus, in Allentown Mack, the
Court found that the Board’s “good faith reasonable doubt” test was
rational and consistent with the Act. The Court, however, further found
that the Board had erred in not considering as relevant to a determina-
tion of whether the employer had a good-faith doubt of the union’s
majority testimony by certain individuals regarding antiunion state-
ments they allegedly overheard employees make. Finding the term
“doubt” to be synonymous with “uncertainty,” the Court reasoned that
when viewed with other objective evidence of record, the employee
statements rejected by the Board may very well have created a reason-
able “uncertainty” in the employer’s corporate mind of the union’s
majority status. Here, unlike in Allentown Mack, there are no antiunion
CONCLUSIONS OF LAW
1. The Respondent, Metro Health, Inc., d/b/a Hospital Metro-
politano, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, Unidad Laboral de Enfermeras (os) y Em-
pleados de la Salud, is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since 1996, the Union has been the duly certified collec-
tive-bargaining representative of the Respondent’s employees
in the following appropriate units:

Unit A
All Licensed Practical Nurses, Operating Room Tech-
nicians, X-Ray Technicians, Respiratory Therapy Techni-
cians and Auxiliary Pharmacists; excluding all other em-
ployees, secretaries of the executive director, medical di-
rector, comptroller, nursing director, plant and mainte-
nance director, director of personnel and medical faculty,
temporary employees, messengers, guards, and supervi-
sors as defined in the Act.
Unit B
All registered nurses, excluding all other employees,
secretaries of the executive director, medical director,
comptroller, nursing director, plant and maintenance direc-
tor, director of personnel and medical faculty, temporary
employees, messengers, guards, and supervisors as defined
in the Act.
Unit C
All orderlies, ward clerks, office clerks, medical re-
cords technicians and/or clerks transcribers, EKG techni-
cians, supply technicians, laboratory aides, printing office
employees, telephone operators, warehouse clerks, and
pharmacy clerks; excluding all other employees, secretar-
ies of the executive director, medical director, comptroller,
nursing director, plant and maintenance director, director
of personnel and medical faculty, temporary employees,
messengers, guards, and supervisors as defined in the Act.
Unit D
All business office employees, billing and collector
clerks, cashiers, inventory control clerks, and accounting
clerks; excluding all other employees, secretaries of the
executive director, medical director, comptroller, nursing
director, plant and maintenance director, director of per-
sonnel and medical faculty, temporary employees, mes-
sengers, guards, and supervisors as defined in the Act.

statements attributed to unit employees. While the April 21 petition
may be considered an employee statement, it contains no antiunion
sentiment and, at most, reflects only anti-Quiñones, and antidues
checkoff sentiment. As such, the April 21 petition does not come even
close to being objective evidence justifying a withdrawal of recogni-
tion, regardless of whether the test is phrased in terms of “good faith
reasonable doubt” of the Union’s majority support or “genuine, reason-
able uncertainty about whether the Union enjoyed the continuing sup-
port of a majority of unit employees.” See Henry Bierce Co., supra at
647. Also Scepter Ingot Castings, Inc., 331 NLRB 1509 (2000).
HOSPITAL METROPOLITANO 565
Unit E
All dietary employees, linen supply employees, main-
tenance employees, housekeeping employees, and drivers;
excluding all other employees, secretaries of the executive
director, medical director, comptroller, nursing director,
plant and maintenance director, director of personnel and
medical faculty, temporary employees, messengers,
guards, and supervisors as defined in the Act.
Unit F
All pharmacists and medical technologists; excluding
all other employees, secretaries of the executive director,
medical director, comptroller, nursing director, plant and
maintenance director, director of personnel and medical
faculty, temporary employees, messengers, guards, and
supervisors as defined in the Act.

4. By withdrawing recognition from, and refusing since De-
cember 3, to bargain with, the Union, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The Respondent shall be ordered to,
upon request, bargain with the Union regarding its unit em-
ployees’ terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement. Finally, the Respondent shall be required to post, in
English and Spanish, a notice to employees.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, Metro Health, Inc., d/b/a Hospital Metro-
politano, Rio Piedras, Puerto Rico, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Unidad Laboral
de Enfermerasv(os) y Empleados de la Salud which is the ex-
clusive collective-bargaining representative of its employees in
the following appropriate units:

UNIT A
All Licensed Practical Nurses, Operating Room Tech-
nicians, X-Ray Technicians, Respiratory Therapy Techni-
cians and Auxiliary Pharmacists; excluding all other em-
ployees, secretaries of the executive director, medical di-
rector, comptroller, nursing director, plant and mainte-
nance director, director of personnel and medical faculty,

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
temporary employees, messengers, guards, and supervi-
sors as defined in the Act.
Unit B
All registered nurses, excluding all other employees,
secretaries of the executive director, medical director,
comptroller, nursing director, plant and maintenance direc-
tor, director of personnel and medical faculty, temporary
employees, messengers, guards, and supervisors as defined
in the Act.
Unit C
All orderlies, ward clerks, office clerks, medical re-
cords technicians and/or clerks transcribers, EKG techni-
cians, supply technicians, laboratory aides, printing office
employees, telephone operators, warehouse clerks, and
pharmacy clerks; excluding all other employees, secretar-
ies of the executive director, medical director, comptroller,
nursing director, plant and maintenance director, director
of personnel and medical faculty, temporary employees,
messengers, guards, and supervisors as defined in the Act.
Unit D
All business office employees, billing and collector
clerks, cashiers, inventory control clerks, and accounting
clerks; excluding all other employees, secretaries of the
executive director, medical director, comptroller, nursing
director, plant and maintenance director, director of per-
sonnel and medical faculty, temporary employees, mes-
sengers, guards, and supervisors as defined in the Act.
Unit E
All dietary employees, linen supply employees, main-
tenance employees, housekeeping employees, and drivers;
excluding all other employees, secretaries of the executive
director, medical director, comptroller, nursing director,
plant and maintenance director, director of personnel and
medical faculty, temporary employees, messengers,
guards, and supervisors as defined in the Act.
Unit F
All pharmacists and medical technologists; excluding
all other employees, secretaries of the executive director,
medical director, comptroller, nursing director, plant and
maintenance director, director of personnel and medical
faculty, temporary employees, messengers, guards, and
supervisors as defined in the Act.

(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive rep-
resentative of the employees in the above-described appropriate
units concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a signed
agreement.
(b) Within 14 days after service by the Region, post at its fa-
cility in Rio Piedras, Puerto Rico, copies of the attached notice
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 566
marked “Appendix.”17 Copies of the notice, on forms pro-
vided, in English and Spanish, by the Regional Director for
Region 24, 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 con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,

17 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “Posted by Order of the National
Labor Relations Board’’ shall read “Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.’’
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the 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 employ-
ees employed by the Respondent at any time since December 3,
1999.
(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.