DYCORA TRANSITIONAL HEALTH & LIVING D/B/A KAWEAH MANOR

National Labor Relations Board - Board Decisions

Oct 18, 2018

367 NLRB No. 22 (N.L.R.B. 2018)

367 NLRB No. 22
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.
Dycora Transitional Health & Living d/b/a Kaweah
Manor and Service Employees International Un-
ion, Local 2015. Cases 32–CA–206624 and 32–
CA–210419
October 18, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
Upon charges filed September 21 and November 22,
2017, by Service Employees International Union, Local
2015 (the Union), and an amended charge filed by the Un-
ion on October 16, 2017, the General Counsel issued a
consolidated complaint and notice of hearing on Decem-
ber 18, 2017, alleging that Dycora Transitional Health &
Living d/b/a Kaweah Manor (the Respondent) violated
Section 8(a)(5) and (1) of the Act by failing and refusing
to recognize and bargain with the Union and by failing and
refusing to furnish the Union with requested information
that is necessary for, and relevant to, the Union’s perfor-
mance of its duties as the exclusive collective-bargaining
representative of the Respondent’s unit employees. On
January 17, 2018, the Respondent filed an answer in which
it denied the unfair labor practice allegations and asserted
various affirmative defenses. On February 12, 2018, the
General Counsel issued an amended consolidated com-
plaint. On February 26, 2018, the Respondent filed an an-
swer to the amended consolidated complaint.
On March 9, 2018, the Respondent, the Union, and the
General Counsel filed a joint motion to waive a hearing by
an administrative law judge and to submit this case to the
National Labor Relations Board for a decision based on a
stipulated record. On April 19, 2018, the Board granted
the parties’ joint motion. Thereafter, the Respondent, the
Union, and the General Counsel filed briefs, and the Re-
spondent and General Counsel filed answering briefs.1
The Board has delegated its authority in this proceeding
to a three-member panel.
On the entire record and briefs, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times herein, the Respondent has been a
California corporation with an office and place of business

1 In addition, on June 7, 2018, the Union filed a “Joinder in Counsel
for the General Counsel’s Answering Brief.”
2 All subsequent dates are in 2017 unless otherwise indicated.
in Visalia, California, and has been engaged in the busi-
ness of providing rehabilitation and skilled nursing care to
individuals. In conducting its business operations during
the calendar year ending December 31, 2017, the Re-
spondent derived gross revenues in excess of $100,000,
and purchased and received goods or services valued in
excess of $5000 directly from points outside the State of
California. At all material times, the Respondent has been
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and a health care in-
stitution within the meaning of Section 2(14) of the Act;
and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
On January 25, 2017,2 the Union filed a petition in Case
32–RC–191811 seeking to represent a bargaining unit of
Licensed Vocational Nurses (LVNs) employed by
Kaweah Manor, Inc. d/b/a Kaweah Manor Convalescent
Hospital (Kaweah) at its facility located at 3710 West Tu-
lare Avenue, Visalia, California. Following a preelection
hearing held on February 8, 9, 13, and 15,3 the Regional
Director issued a Decision and Direction of Election on
March 23, in which she rejected Kaweah’s contention that
the petitioned-for LVNs were statutory supervisors under
Section 2(11) of the Act and found that the following em-
ployees constitute an appropriate unit for purposes of col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time Licensed Vocational
Nurses employed by [Kaweah] at its facility located at
3710 W. Tulare Avenue, Visalia, CA; excluding Certi-
fied Nursing Assistants, Restorative Nursing Assistants,
Activity Assistants, Dietary Employees, Housekeeping
employees, Laundry employees, confidential employ-
ees, office clerical employees, guards and supervisors as
defined by the Act.
Kaweah did not request review of the Decision and Direction
of Election.
On April 5, an election by secret ballot was conducted.
The tally of ballots showed that of approximately 18 eli-
gible voters, 9 ballots were cast for the Union, 4 were cast
against representation, and there were no challenged bal-
lots. There were no objections to the election. On April
13, the Regional Director issued a Certification of Repre-
sentative. There was no request for review of the certifi-
cation.
3 Consolidated with Case 32–RC–191811 in that hearing was Case
32–RC–191816 involving another unit of Kaweah’s employees, not at
issue here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
About May 3, the Union requested that Kaweah bargain
collectively with the Union as the exclusive collective-
bargaining representative of the certified LVN unit.
Kaweah did not respond to the Union’s request to bargain.
About July 15, Kaweah ceased doing business and the
Respondent began operations at the same facility, employ-
ing as a majority of its employees individuals who were
previously employed by Kaweah. More specifically, the
Respondent employed as a majority of its LVNs individu-
als who were previously employed by Kaweah as LVNs.
Substantial continuity exists between the Respondent’s
and Kaweah’s operations at the Respondent’s Visalia,
California facility. Indeed, since July 15, the Respond-
ent’s operations have remained fundamentally the same as
they were before July 15. Based on these facts, the parties
have stipulated that since July 15, the Respondent has con-
tinued the employing entity and has been a successor em-
ployer to Kaweah under NLRB v. Burns International Se-
curity Services, Inc., 406 U.S. 272 (1972).
On August 28, orally and in writing, and again on Sep-
tember 8, by email, the Union requested that the Respond-
ent bargain collectively with the Union as the exclusive
collective-bargaining representative of the LVN unit. By
email dated September 12, the Respondent informed the
Union that it declined to engage in bargaining and in-
tended to contest the Board’s certification of the Union as
the exclusive collective-bargaining representative of the
LVN unit.
On August 28, in writing, the Union requested that the
Respondent provide it with the following information:
1) RFI No. 1: “For each actively employed bargaining
unit employee
(a) Name;
(b) Job Classification;
(c) Job classification code;
(d) Hourly Base Wage Rate;
(e) Date of Hire;
(f) Seniority Date;
(g) Date of Birth;
(h) Department;
(i) Status (Regular Full-Time; Regular Part-Time;
Limited Part-Time; Casual; Temporary Supple-
mental; With or Without Benefits);
(j) Shift (Days; Evenings; Nights; or Varied);
(k) Gender;
(l) Home Telephone Number;
(m) Home Address;

4 In his brief to the Board, the General Counsel explained that alt-
hough the amended consolidated complaint additionally alleged that the
Respondent unlawfully withdrew recognition of the Union, the General
Counsel no longer seeks to pursue that allegation. The General Counsel
(n) Phone Number;
(o) Email Address; and
(p) Employee ID Number, Social Security Num-
ber or other unique identifier.”
2) RFI No. 2: “Total hours and total payroll for the
bargaining unit for each of the past three years.”
3) RFI No. 3: “All Handbooks and/or Policy
Manuals.”
4) RFI No. 4: “For all Retirement Plans Covering
Bargaining Unit Employees:
(a) Copy of Current Plan Document and Sum-
mary Plan Description;
(b) Actuarial Valuation, DOL Form 5500, Au-
dited Financial Statement and Trustees’ Report for
the Three Most Recent Years.”
Since August 28, the Respondent has failed and refused to
furnish the Union with the requested information.
The parties agree that if the Union is found to be the
exclusive collective-bargaining representative of the LVN
unit in this proceeding, the Respondent would have been
required to respond in good faith to the Union’s August 28
request for information. The Respondent has not asserted
to the Union at any time that any of the requested infor-
mation is not relevant to or necessary for the Union’s per-
formance of its duties as the exclusive collective-bargain-
ing representative of the LVN unit.
B. The Parties’ Contentions
The General Counsel contends that the Respondent vi-
olated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the LVN
unit, and by failing and refusing to provide the Union with
the requested information.4 The General Counsel asserts
that under Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941), the Respondent is precluded from litigat-
ing issues related to the underlying representation case.
The General Counsel further contends that the failure of
Kaweah to request review of the Regional Director’s De-
cision and Direction of Election does not give the Re-
spondent, as Kaweah’s successor, the right to contest the
Regional Director’s findings in that decision in this unfair
labor practice proceeding. Rather, the Respondent steps
into the shoes of, and has no greater rights than, Kaweah.
The General Counsel also observes that the Respondent
does not otherwise claim to possess any newly discovered
and previously unavailable evidence, or allege any special
further explained that in light of the withdrawal of that allegation, he no
longer seeks the notice-reading remedy requested in the amended con-
solidated complaint.
DYCORA TRANSITIONAL HEALTH & LIVING D/B/A KAWEAH MANOR 3
circumstances, that would provide a basis to reexamine
the Regional Director’s decision in the representation pro-
ceeding. The General Counsel additionally notes that the
Respondent does not assert that there are any differences
in the LVNs’ duties or working conditions as between
Kaweah and the Respondent.
The Respondent points out that it was unable to chal-
lenge the appropriateness of the LVN unit at the time of
the representation proceeding because it was not the
LVNs’ employer at that time. The Respondent contends
that its inability to challenge the unit’s appropriateness
during the representation proceedings and Kaweah’s fail-
ure to request Board review of the Regional Director’s
finding that the petitioned-for LVN unit was appropriate
constitute special circumstances warranting the Board’s
consideration of that representation issue in this proceed-
ing. The Respondent acknowledges that the Board gener-
ally prohibits relitigation of representation matters in sub-
sequent unfair labor practice proceedings. However, cit-
ing Sub-Zero Freezer Co., 271 NLRB 47 (1984), and St.
Francis Hospital, 271 NLRB 948 (1984), the Respondent
contends that the Board is not precluded from doing so in
order to correct erroneous conclusions from prior proceed-
ings. The Respondent asserts that the Board should find
that the previously certified unit is not appropriate, and on
this basis should dismiss the complaint.
C. Discussion
The Respondent’s sole defense to its refusal to recog-
nize and bargain with, and to furnish requested relevant
information to, the Union is its contention that the previ-
ously certified LVN unit is not appropriate, and that its
previous inability to present this issue to the Board in the
underlying representation case coupled with its predeces-
sor’s failure to do so warrants allowing it to relitigate the
unit issue in this unfair labor practice proceeding. We dis-
agree.
It is well settled that a successor employer “stands in the
shoes of its predecessor and may not defend against an al-
legation that it is unlawfully refusing to recognize and bar-
gain with a certified union by alleging matters that its pre-
decessor could have raised in a prior representation pro-
ceeding, absent special circumstances.” Hotel Del Coro-
nado, 345 NLRB 306, 307 (2005). “The fact that [a re-
spondent] was not a party to the [underlying] Board elec-
tion does not constitute a ‘special circumstance’ that
would permit it to challenge [a union’s] certification.” Id.;
see also New London Convalescent Home, 274 NLRB
1442, 1443 (1985) (successor precluded from relitigating
unit scope and alleged objectionable conduct litigated by

5 The Board has held that Social Security numbers are not presump-
tively relevant. See Sea–Jet Trucking Corp., 304 NLRB 67, 67 (1991).
the predecessor in the underlying representation proceed-
ing); Windsor Convalescent Center of North Long Beach,
351 NLRB 975, 978 (2007) (same; unit issue), enf. denied
on other grounds sub nom. S & F Market Street
Healthcare LLC v. NLRB, 570 F.3d 354 (D.C. Cir. 2009).
We find that the Respondent has not demonstrated that
any special circumstances exist that would allow it to liti-
gate the appropriateness of the LVN unit. The fact that
the Respondent, as Kaweah’s successor, was not a party
to the prior representation proceeding is not a special cir-
cumstance that would permit it to do so. Windsor Conva-
lescent Center of North Long Beach, 351 NLRB at 978 fn.
18. Neither is the fact that Kaweah’s decision not to re-
quest review in the representation proceeding left the
Board with no occasion to consider the unit issue. In Hotel
Del Coronado, supra, the Board found that the fact a pre-
decessor employer had stipulated to the unit in a prior rep-
resentation proceeding, thereby precluding Board consid-
eration of the unit issue, did not permit the successor em-
ployer to litigate the appropriateness of the unit in a sub-
sequent unfair labor practice proceeding. That precedent
is directly applicable here because, as in Hotel Del Coro-
nado, the Respondent merely seeks to litigate an issue that
could have been raised to the Board in the underlying rep-
resentation proceeding. Accordingly, the Respondent’s
“special circumstances” defense to the allegation that its
refusal to recognize and bargain with the Union violated
Section 8(a)(5) is without merit.
Citing Sub-Zero Freezer Co., supra, and St. Francis
Hospital, supra, the Respondent further contends that,
even absent special circumstances, the Board in its discre-
tion may reconsider the representation issue here. Those
cases are two of a limited number of cases in which the
Board has departed from its longstanding rule against re-
litigation of representation matters in subsequent unfair la-
bor practice proceedings. Having reviewed the facts and
arguments presented by the Respondent, we find no basis
for departing from our longstanding rule in this proceed-
ing. See, e.g., Temple University Hospital Inc., 366
NLRB No. 88, slip op. at 2 fn. 4 (2018) (declining to de-
part from longstanding rule); Memorial Hospital of Salem
County, 357 NLRB No. 119, slip op. at 1–2 fn. 5 (2011)
(not reported in Board volumes) (same). For these rea-
sons, the Respondent’s refusal to recognize and bargain
with the Union violated Section 8(a)(5).
For the same reasons, we further find that the Respond-
ent violated the Act by refusing to furnish the Union with
requested information. With the exception of the Union’s
requests for employee Social Security numbers5 and
Although the parties stipulated that the Respondent would have been re-
quired to respond to the Union’s request for this information, the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
handbooks and policy manuals (if any) that do not pertain
to bargaining-unit employees,6 the information requested
by the Union is presumptively relevant for purposes of
collective bargaining, and the Respondent has not asserted
any basis for rebutting its presumptive relevance. See,
e.g., CVS Albany, LLC d/b/a CVS, 364 NLRB No. 122,
slip op. at 1 (2016), enfd. mem. 709 Fed. Appx. 10 (D.C.
Cir. 2017) (per curiam); Metro Health Foundation, Inc.,
338 NLRB 802, 803 (2003).
Accordingly, we find that by refusing to recognize and
bargain with the Union, and by failing to furnish the Union
with requested relevant information as described above,
the Respondent has violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit, and by
failing and refusing to provide the Union with certain re-
quested information, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order the Respondent
to cease and desist from such conduct. In addition, we
shall order the Respondent to bargain with the Union on
request and, if an understanding is reached, to embody the
understanding in a signed agreement. We shall also order
the Respondent to furnish the Union the information it re-
quested, with the exception of employee Social Security
numbers and handbooks and policy manuals that do not
pertain to employees in the LVN unit.
The General Counsel requests that the Board grant a
Mar-Jac Poultry remedy, under which the certification
year will commence on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962).7 We agree that this remedy

relevance of employee Social Security numbers has not been established.
Accordingly, we will not order the Respondent to furnish the Union with
employee Social Security numbers.
6 The Union’s request for “[a]ll Handbooks and/or Policy Manuals”
could be construed as including handbooks and/or policy manuals that
do not apply to employees in the LVN unit. In accordance with Board
precedent, however, we shall construe this request to pertain to unit em-
ployees. See, e.g., DirecTV U.S. DirecTV Holdings LLC, 361 NLRB No.
124, slip op. at 2 (2014) (not reported in Board volumes). So construed,
we find this information to be presumptively relevant, and the Respond-
ent’s failure to furnish this information as it relates to unit employees
was unlawful.
7 Accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
is warranted. See, e.g., Petoskey Geriatric Village, 295
NLRB 800, 803 (1989) (“[W]here an employer or its suc-
cessor refuse all bargaining, the certification year will not
commence until good-faith bargaining occurs.”). Indeed,
in circumstances comparable to those present here, the
Board imposed a Mar-Jac remedy and held that the certi-
fication year commenced only when the successor began
to bargain in good faith. Corbel Installations, Inc., 360
NLRB 10, 10 (2013).8
The Union requests additional enhanced remedies. Con-
trary to the Union’s assertions, there has been no showing
that the Board’s traditional remedies are insufficient to re-
dress the violations found. Accordingly, we deny the Un-
ion’s request for additional remedies.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Dycora Transitional Health & Living d/b/a
Kaweah Manor, Visalia, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Service Employees International Union, Local 2015 (the
Union) as the exclusive collective-bargaining representa-
tive of the employees in the bargaining unit.
(b) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining rep-
resentative of the Respondent’s unit employees.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
that understanding in a signed agreement:
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964).
8 In Corbel, the successor employer took over the predecessor’s op-
erations about 2 months after the union’s certification, and the successor
unlawfully refused to recognize and bargain with the union until about
10 months into the certification year. Finding that the successor began
to bargain in good faith with only 2 months remaining in the certification
year, the Board, citing Mar-Jac Poultry, granted the General Counsel’s
request for a 10-month extension of the certification year to ensure at
least 1 year of good-faith bargaining.
Here, where neither the predecessor nor the Respondent engaged in
good-faith bargaining, the full 12-month Mar-Jac remedy applies, and
the certification year will commence on the date that the Respondent be-
gins to bargain in good faith.
DYCORA TRANSITIONAL HEALTH & LIVING D/B/A KAWEAH MANOR 5
All full-time and regular part-time Licensed Vocational
Nurses employed by the Respondent at its facility lo-
cated at 3710 W. Tulare Avenue, Visalia, CA; excluding
Certified Nursing Assistants, Restorative Nursing Assis-
tants, Activity Assistants, Dietary Employees, House-
keeping employees, Laundry employees, confidential
employees, office clerical employees, guards and super-
visors as defined by the Act.
(b) Furnish to the Union in a timely manner the infor-
mation requested by the Union on August 28, 2017, with
the exception of employee Social Security numbers and
handbooks and/or policy manuals that do not pertain to
employees in the bargaining unit described above.
(c) Within 14 days after service by the Region, post at
its Visalia, California facility copies of the attached notice
marked “Appendix.”9 Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, 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, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If 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 employees em-
ployed by the Respondent at any time since August 28,
2017.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 32 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. October 18, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member

9 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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 ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with Service Employees International Union, Local 2015
(the Union) as the exclusive collective-bargaining repre-
sentative of our employees in the bargaining unit de-
scribed below.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
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, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody that understanding in a signed agree-
ment:
All full-time and regular part-time Licensed Vocational
Nurses employed by Respondent at its facility located at
3710 W. Tulare Avenue, Visalia, CA; excluding
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Certified Nursing Assistants, Restorative Nursing Assis-
tants, Activity Assistants, Dietary Employees, House-
keeping employees, Laundry employees, confidential
employees, office clerical employees, guards and super-
visors as defined by the Act.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on August 28, 2017,
with the exception of employee Social Security numbers
and handbooks and/or policy manuals that do not pertain
to employees in the bargaining unit described above.
DYCORA TRANSITIONAL HEALTH & LIVING
D/B/A KAWEAH MANOR
The Board’s decision can be found at
https://www.nlrb.gov/case/32-CA-206624 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.