Bristol Manor Health Care Center

National Labor Relations Board - Board Decisions

Oct 24, 2013

360 N.L.R.B. 38 (N.L.R.B. 2013)

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 7
Bristol Manor Health Care Center and 1199 SEIU,
United Healthcare Workers East. Case 22–CA–
087652
October 24, 2013
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND SCHIFFER
The Acting General Counsel seeks a default judgment
in this case pursuant to the terms of a bilateral informal
settlement agreement. Upon a charge filed by 1199
SEIU, United Healthcare Workers East (the Union) on
August 17, 2012, the Acting General Counsel issued the
complaint on October 9, 2012, against Bristol Manor
Health Care Center (the Respondent) alleging that it vio-
lated Section 8(a)(5) and (1) of the Act. The Respondent
filed an answer.
Subsequently, the Respondent and the Union entered
into a bilateral informal settlement agreement, which was
approved by Administrative Law Judge Steven Davis on
December 4, 2012, after the hearing opened. Among
other things, the settlement agreement required the Re-
spondent to (1) furnish the Union with the information it
requested on June 12, July 27, and August 17, 2012; and
(2) post appropriate notices.
The settlement agreement also contained the following
provision:
Performance by the Charged Party with the terms and
provisions of this Agreement shall commence immedi-
ately after the Agreement is approved by the Adminis-
trative Law Judge, or if the Charging Party or Counsel
for the General Counsel does not enter into this
Agreement, performance shall commence immediately
upon receipt by the Charged Party of notice that no re-
view has been requested or that the Board has sustained
the Administrative Law Judge. The Agreement shall
be remanded by the Administrative Law Judge to the
Regional Director for securing compliance with its
terms. 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 no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
reissue the complaint previously issued on October 9,
2012 in the instant case. Thereafter, the General Coun-
sel may file a motion for default judgment with the
Board on the allegations of the complaint. The
Charged Party understands and agrees that the allega-
tions of the aforementioned complaint will be deemed
admitted and its Answer to such complaint will be con-
sidered withdrawn. The only issue that may be raised
before the Board is whether the Charged Party default-
ed 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 violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board order ex parte, after service or at-
tempted service upon Charged Party/Respondent at the
last address provided to the General Counsel.
By letter dated April 12, 2013, the Regional Director
for Region 22 notified the Respondent’s attorney that the
Respondent had provided some, but not all, of the infor-
mation required by the settlement agreement. Thus, the
Regional Director informed the Respondent that it had
not yet produced, for the period beginning January 1,
2012, to the present, payroll records for LPNs, recreation
aides, and housekeeping and dietary employees; sched-
ules for LPNs, recreation aides, and housekeeping and
dietary employees; explanation of payroll codes; and
copies of time off request forms. The letter stated that
unless the Region received all of the outstanding infor-
mation by April 26, 2013, the Regional Director would
revoke the settlement agreement and reissue the com-
plaint. The Respondent failed to comply.
Accordingly, pursuant to the terms of the noncompli-
ance provision of the settlement agreement, on May 14,
2013, the Regional Director reissued the complaint, and
the Acting General Counsel filed a Motion for Default
Judgment with the Board. On May 15, 2013, the Board
issued an order transferring the proceeding to the Board
and Notice to Show Cause why the motion should not be
granted. On May 17, 2013, the Board issued an Order
correcting the show cause response date. On May 29,
2013, the Respondent filed a response with an attached
submission of documents. The Acting General Counsel
and the Union filed replies to the Respondent’s response;
the Respondent and the Union filed additional responses.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
In its response to the Notice to Show Cause, the Re-
spondent contends that the motion for default judgment
is moot because the documents attached to its response to
the Notice to Show Cause, which consist of copies of
time off request forms that employees submitted between
BRISTOL MANOR HEALTH CARE CENTER 39
December 2012 and April 2013, along with its prior
submissions of information, “demonstrate that no em-
ployees have been harmed or deprived of any holidays
pursuant to the Collective Bargaining Agreement.”
Both the Acting General Counsel and the Union con-
tend in their replies to the Respondent’s response that the
Respondent has not produced the documents required by
the settlement agreement. The Respondent submitted
another letter dated June 28, 2013, which asserts that the
Respondent has provided “staffing schedules, employee
ledgers, list of bargaining employees with accrued holi-
days, and payroll registers,” and thus it has been “re-
sponsive” to the Union’s information request, and that
the information demonstrates that it has complied with
the collective-bargaining agreement. Thereafter, the Un-
ion submitted a letter dated July 8, 2013, attaching a
copy of a letter from the Union to the Respondent also
dated July 8, 2013, outlining the information that the
Respondent has not provided in response to the Union’s
information request.
Although the Respondent asserts generally that it has
complied with each and every request made by the Un-
ion, the Respondent has not established that it has fully
complied with the settlement agreement requiring disclo-
sure, among other things, of each item of information
requested in the Union’s June 12, 2012 letter. Indeed,
the Respondent does not directly dispute the assertions
made by the Acting General Counsel and the Union that
much of the information covered by the settlement
agreement still has not been provided. Rather, the Re-
spondent maintains that the information it has provided is
“responsive” to the Union’s request and, further, that this
information demonstrates its compliance with the collec-
tive-bargaining agreement.
As noted above, the noncompliance provision in the
settlement agreement provides that “[t]he only issue that
may be raised before the Board is whether the Charged
Party defaulted on the terms of this Settlement Agree-
ment.” As described, the Respondent has not shown that
it has fully complied with that agreement. Further, the
Respondent’s assertion that the information already pro-
vided demonstrates its compliance with the collective-
bargaining agreement is immaterial to the matter at issue
here. The settlement agreement further provides that
“[t]he 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.” Therefore,
in light of the undisputed assertions by the Acting Gen-
eral Counsel and the Union that the Respondent has not
provided all of the required information and has not
complied with the terms of the settlement agreement, we
find that the Respondent has failed to raise any material
issue of fact warranting a hearing.1
Accordingly, we grant the Acting General Counsel’s
Motion for Default Judgment and find, pursuant to the
noncompliance provisions of the settlement agreement
set forth above, that all of the allegations in the reissued
complaint are true.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation with an office and place of business in Ro-
chelle Park, New Jersey (the Respondent’s Rochelle Park
facility), has been engaged in the business of operating a
nursing home and rehabilitation center providing in-
patient medical care.
During the 12-month period preceding reissuance of
the complaint, the Respondent has derived gross reve-
nues in excess of $100,000 and purchased and received
at its Rochelle Park facility goods and supplies valued in
excess of $5000 directly from suppliers located outside
the State of New Jersey.
We find that the Respondent 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
At all material times Kristine Giles held the position of
the Respondent’s administrator and has been a supervisor
of the Respondent within the meaning of Section 2(11)
of the Act and an agent of the Respondent within the
meaning of Section 2(13) of the Act.
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All CNAs, dietary, housekeeping, recreational aides,
LPNs, and all other employees; excluding professional
employees, registered nurses, cooks, confidential em-
ployees, office clerical employees, watchmen, guards
and supervisors as defined in the Act.

1 See, e.g., Long Mechanical, Inc., 358 NLRB 892, 893 (2012)
(company’s failure to respond to specific allegations that it had
breached settlement agreement by failing to provide information, as set
forth in Acting General Counsel’s motion, and failure to come forward
with anything specifically supporting its general denial that it had
breached settlement agreement, warranted finding that the complaint
allegations were true).
2 See U-Bee, Ltd., 315 NLRB 667 (1994). Also, pursuant to the
noncompliance provisions, we find that the Respondent’s answer to the
original complaint has been withdrawn.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
At all material times, the Respondent has recognized
the Union as the exclusive collective-bargaining repre-
sentative of the unit. This recognition has been embod-
ied in successive collective-bargaining agreements, the
most recent of which is effective from April 1, 2010,
until March 31, 2014.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
Since about June 12, 2012, the Union has requested, in
writing, that the Respondent furnish it with information
described in the Union’s June 12, 2012 letter:
(a) Any and all documents describing holiday
pay and all conditions for receiving holiday pay;
(b) Any and all documents, including but not lim-
ited to correspondence, reflecting communications
between the Respondent and the Union regarding
holiday pay;
(c) Work schedules from January 1, 2012 to the
present, for all bargaining unit employees for each
shift and department, showing all holidays worked
and all days off granted in lieu of payment to an em-
ployee working on a holiday;
(d) Completed “time off request” forms for all
bargaining unit employees submitted from January
1, 2012 to the present; and
(e) All documents, including but not limited to
the payroll register, for all bargaining unit employ-
ees from January 1, 2012 to the present, showing all
hours worked and paid, including pay for holiday
pay.
The information requested by the Union, described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since about June 12, 2012, the Respondent has failed
and refused to furnish the Union with the information
requested on that date.
In disposition of Case 22–CA–087652, the Respondent
and the Union entered into an informal Board settlement
agreement, which was approved by Administrative Law
Judge Steven Davis on December 4, 2012.
Since about April 26, 2013, and continuously thereaf-
ter, the Respondent has refused to fully comply with the
settlement agreement described above by refusing to
furnish the Union with the information requested on June
12, 2012, and refusing to provide the Union with an ex-
planation of certain payroll codes.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and
(1) by failing and refusing to furnish the Union with cer-
tain requested information that is relevant and necessary
to its role as the exclusive collective-bargaining repre-
sentative of the unit employees, we shall order the Re-
spondent to furnish the Union with the information it
requested on June 12, 2012.
ORDER
The National Labor Relations Board orders that the
Respondent, Bristol Manor Health Care Center, Rochelle
Park, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with 1199 SEIU, United Healthcare Workers
East as the exclusive collective-bargaining representative
of the unit employees by failing and refusing to furnish
the Union with requested information that is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the employees in the following appropriate bargaining
unit:
All CNAs, dietary, housekeeping, recreational aides,
LPNs, and all other employees; excluding professional
employees, registered nurses, cooks, confidential em-
ployees, office clerical employees, watchmen, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union the information it requested on
June 12, 2012.
(b) Within 14 days after service by the Region, post at
its Rochelle Park, New Jersey facility copies of the at-
BRISTOL MANOR HEALTH CARE CENTER 41
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced 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 cur-
rent employees and former employees employed by the
Respondent at any time since June 12, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted By Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with 1199 SEIU, United Healthcare Work-
ers East as the exclusive collective-bargaining repre-
sentative of our unit employees by failing and refusing to
furnish the Union with requested information that is nec-
essary for and relevant to the performance of its duties as
the exclusive collective-bargaining representative of the
following employees in the collective-bargaining unit:
All CNAs, dietary, housekeeping, recreational aides,
LPNs, and all other employees; excluding professional
employees, registered nurses, cooks, confidential em-
ployees, office clerical employees, watchmen, guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish the Union with the information it re-
quested on June 12, 2012.
BRISTOL MANOR HEALTH CARE CENTER