Arnold Walter Nursing and Rehabilitation Center

National Labor Relations Board - Board Decisions

Jun 29, 2018

366 NLRB No. 120 (N.L.R.B. 2018)

366 NLRB No. 120
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Arnold Walter Nursing and Rehabilitation Center
and 1199 Service Employees International Un-
ion, United Healthcare Workers East. Cases 22–
CA–180557 and 22–CA–186982
June 29, 2018
ORDER DENYING MOTION AND REMANDING
BY MEMBERS PEARCE, KAPLAN, AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge in Case 22–CA–180557 filed
by 1199 Service Employees International Union, United
Healthcare Workers East (the Union), on July 19, 2016,
and a charge in Case 22–CA–186982 filed by the Union
on October 25, 2016, the General Counsel issued the
Order consolidating cases, consolidated complaint, and
notice of hearing (consolidated complaint) on December
29, 2016, alleging that Arnold Walter Nursing and Reha-
bilitation Center (the Respondent) violated Section
8(a)(5) and (1) of the Act. The Respondent filed an an-
swer on January 12, 2017.1
Subsequently, the Respondent entered into a bilateral
informal settlement agreement, which was approved by
the Regional Director for Region 22 on March 3. The
settlement agreement required, among other things, that
the Respondent provide the Union with all of the relevant
information it requested on April 28, 2016. It also re-
quired the Respondent, on request, to bargain in good
faith with the Union about terms and conditions of em-
ployment for unit employees and, if an agreement is
reached, to embody the understanding in a signed agree-
ment.
The settlement agreement also contained the following
provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days’
notice from the Regional Director of the National La-
bor Relations Board of such non-compliance without
remedy by the Charged Party, the Regional Director
will reissue the Complaint previously issued on De-
cember 29, 2016. Thereafter, the General Counsel may
file a Motion for Default Judgment with the Board on
the allegations of the Complaint. The Charged Party
understands and agrees that all of the allegations of the
Complaint will be deemed admitted and that it will

1 All subsequent dates are in 2017, unless otherwise noted.
have waived its right to file an Answer to such Com-
plaint. The only issue that the Charged Party may raise
before the Board will be whether it defaulted on the
terms of this Settlement Agreement. The Board may
then, without necessity of trial or any other proceeding,
find all allegations of the Complaint to be true and
make findings of fact and conclusions of law consistent
with those allegations adverse to the Charged Party on
all issues raised by the pleadings. The Board may then
issue an Order providing a full remedy for the viola-
tions found as is appropriate to remedy such viola-
tions. The parties further agree that a U.S. Court of
Appeals Judgment may be entered enforcing the Board
Order ex parte, after service or attempted service upon
Charged Party at the last address provided to the Gen-
eral Counsel.
On July 20, the Region’s compliance officer, by letter,
notified the Respondent that it was not in compliance
with the settlement agreement because the Region had
not received the Respondent’s certification that it had
provided the Union with the requested information or
bargained in good faith. The letter also advised the Re-
spondent that the Region would file for default judgment
unless it received the Respondent’s certification that it
had fully complied with the settlement agreement by
August 3.
On February 15, 2018, the Regional Director issued a
reissued order consolidating cases and consolidated
complaint (reissued complaint), and, on February 16,
2018, the General Counsel filed a motion for default
judgment with the Board. On February 20, 2018, the
Board issued an Order Transferring Proceeding to the
Board and Notice to Show Cause why the motion should
not be granted. On March 6, 2018, the Respondent filed a
response to the Notice to Show Cause, disputing the alle-
gation that the settlement had been breached.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on the Motion for Default Judgment
As stated above, the settlement agreement provides
that, in case of breach by the Respondent, “the Regional
Director will reissue the Complaint previously issued on
December 29, 2016. Thereafter, the General Counsel
may file a Motion for Default Judgment with the Board
on the allegations of the Complaint.” Here, however, the
reissued complaint differs materially from the consoli-
dated complaint because it includes post-settlement con-

2 On April 26, 2018, the General Counsel filed a request for leave to
submit a reply to the response with a reply brief attached. We do not
pass on this request as it does not affect the disposition of the case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
duct that was not part of the original complaint.3 Alt-
hough the legal theories of the allegations remain un-
changed, the settlement agreement does not authorize the
General Counsel to seek default judgment on the Re-
spondent’s post-settlement conduct as alleged in the reis-
sued complaint.
We therefore deny the General Counsel’s motion. We
do so without prejudice to the General Counsel renewing
the motion, if he so chooses, within 14 days from the
date of this Decision and Order, and pursuant to a reis-
sued complaint that complies with the terms of the set-
tlement agreement.

3 For example, the December 29, 2016 consolidated complaint al-
leged that that since “September 7, 2016 through and including De-
cember 2016,” the Union requested bargaining with the Respondent,
and that since September 7, 2016, the Respondent failed to bargain with
the Union by refusing to schedule dates for bargaining. The reissued
complaint, however, alleges that since June 20, 2017, the Union re-
quested bargaining with the Respondent, and that since “June 20, 2017,
and continuing to January 16, 2018,” the Respondent failed to bargain
with the Union by refusing to schedule dates for bargaining. In addi-
tion, the reissued complaint alleges, “[s]ince about June 20, 2017, and
continuing to date, Respondent has failed and refused to fully comply
with the settlement agreement . . . by refusing to bargain collectively
and in good faith with the exclusive collective-bargaining representa-
tive of its employees.”
ORDER
IT IS ORDERED that the General Counsel’s Motion for
Default Judgment is denied.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 for fur-
ther appropriate action.
Dated, Washington, D.C. June 29, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD