Heartland Human Services

National Labor Relations Board - Board Decisions

Oct 31, 2013

360 NLRB No. 8 (N.L.R.B. 2013)

360 NLRB No. 8
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.
Heartland Human Services and American Federation
of State, County and Municipal Employees
(AFSCME), Council 31, AFL–CIO. Case 14–
CA–096323
October 31, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The Acting General Counsel seeks summary judgment
in this case on the ground that there are no genuine issues
of material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
Upon a charge filed by American Federation of State,
County and Municipal Employees (AFSCME), Council
31, AFL–CIO (the Union), the Acting General Counsel
issued the complaint on March 21, 2013, against Heart-
land Human Services (the Respondent), alleging that the
Respondent violated Section 8(a)(5) and (1) of the Act
by (a) ceasing to give employees raises on their anniver-
sary dates as required by its collective-bargaining agree-
ment with the Union; (b) changing its 401(k) plan and
provider; and (c) increasing the premium for family and
dependent health insurance benefits, all without prior
notice to the Union and without affording the Union an
opportunity to bargain with the Respondent with respect
to this conduct.
The Respondent filed an answer and an amended an-
swer, admitting all of the factual allegations in the com-
plaint, denying all of the legal conclusions in the com-
plaint, and asserting an affirmative defense. On June 19,
2013, the Acting General Counsel filed with the Board a
Motion for Summary Judgment to which the Respondent
filed a response, stating among other things that it agreed
that no genuine issues of material fact exist warranting a
hearing.
On June 24, 2013, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent again filed a response, and the Acting General
Counsel filed a brief in reply to the Respondent’s re-
sponse.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The complaint alleges, and the Respondent admits, that
the Union was certified as the exclusive collective-
bargaining representative of the unit employees, that a
decertification election was conducted on June 4, 2012,
that a revised tally of ballots showed that a majority of
valid votes had not been cast for the Union, and that on
September 28, 2012, the Board adopted the hearing of-
ficer’s recommendation in Case 14–RD–063069 that a
rerun election be conducted. The complaint further al-
leges, and the Respondent admits, that on March 18,
2013, the Board issued a Decision and Order in Case 14–
CA–0878861 finding, among other things, that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
withdrawing recognition from the Union as the exclusive
collective-bargaining representative of the unit (Heart-
land I). Upon the Respondent’s refusal to comply with
the Board’s March 18, 2013 Order, the Board has sought
enforcement of its Order in the United States Court of
Appeals for the Seventh Circuit.2
The Respondent admits its continued refusal to recog-
nize and bargain with the Union but contends that its
conduct does not violate Section 8(a)(5) and (1) because
the Respondent lawfully withdrew recognition from the
Union based on the fact that it no longer enjoyed the ma-
jority support of its employees. Thus, the Respondent
admits that on August 8, 2012, it ceased giving employ-
ees raises on their anniversary dates as required by the
collective-bargaining agreement; that on September 21,
2012, it changed its 401(k) plan and provider; that on
September 22, 2012, it increased the premium for family
and dependent health insurance benefits; and that it en-
gaged in all of this conduct without prior notice to the
Union and without affording the Union an opportunity to
bargain. The Respondent urges the Board to grant sum-
mary judgment in favor of the Respondent and dismiss
the complaint, or in the alternative, to stay these proceed-
ings until the Seventh Circuit Court of Appeals renders
its judgment.
We find that there are no issues warranting a hearing
because the Respondent has admitted the crucial factual
allegations set forth above. In accord with its position in
the pending enforcement proceeding in Case 14–CA–
087886, the Respondent claims that its admitted conduct
is not unlawful because of its reasonable belief that the
Union does not enjoy the majority support of the em-
ployees in the collective-bargaining unit, based exclu-
sively on the Union’s loss of the June 4, 2012 representa-
tion election and the Board’s erroneous direction to con-

1 359 NLRB No. 76.
2 Case No. 13-1954.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
duct a rerun election in Case 14–RD–063069. For the
reasons that follow, we find no merit in this defense.
With respect to the Respondent’s contention that it is
relieved of its bargaining obligation because the Union
does not enjoy majority status and the Board erred in
ordering a rerun election in Case 14–RD–063069, this
defense was raised before the Board and found to be
without merit in Heartland I, supra, and it is rejected
here for the same reasons.
With respect to the Respondent’s request to dismiss
the complaint or, in the alternative, to stay these proceed-
ings pending a determination in Heartland I by the Unit-
ed States Court of Appeals for the Seventh Circuit, the
request is denied. It is well settled that the pendency of
collateral litigation does not suspend a respondent’s duty
to bargain under Section 8(a)(5).3
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, an Illinois corpo-
ration with an office and place of business located at
1200 North 4th Street, Effingham, Illinois, has been en-
gaged in providing residential and outpatient mental
health services.
In conducting its operations during the 12-month peri-
od ending February 28, 2013, the Respondent derived
gross revenues in excess of $100,000, and purchased and
received at its Effingham, Illinois facility goods valued
in excess of $20,000 directly from points located outside
the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, is a health care institution within the
meaning of Section 2(14) of the Act, and that the Union,
American Federation of State, County and Municipal
Employees (AFSCME), Council 31, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the

3 See Maywood Do-Nut Co., 256 NLRB 507, 508 (1981) (citing Kel-
ler Aluminum Chairs Southern, Inc., 173 NLRB 947, 952 fn. 14
(1968)); see also Great Dane Trailers, Inc., 191 NLRB 6 (1971); Porta
Kamp Mfg. Co., 189 NLRB 899 (1971); and Sec. 10(g) of the Act,
which provides: “The commencement of proceedings under subsection
(e) or (f) of this section shall not, unless specifically ordered by the
court, operate as a stay of the Board’s order.”
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Jeff Bloemker Executive Director
Debra Johnson Human Resources Director
Charles A. Siler Director of Business Services
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees em-
ployed by Respondent at its Effingham, Illinois facility,
excluding office clerical and professional employees,
guards and supervisors as defined in the Act.
On February 1, 2006, the Union was certified as the
exclusive collective-bargaining representative of the unit.
The most recent collective-bargaining agreement cover-
ing the unit was effective from August 21, 2009, through
August 20, 2011. At all material times since February 1,
2006, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of
the unit.
On June 4, 2012, pursuant to a petition filed in Case
14–RD–063069, an election was conducted in the unit.
The tally of ballots disclosed that 19 ballots were cast for
the Union, 18 votes were cast against the Union, and
there was 1 challenged ballot, which was sufficient to
affect the results of the election. On June 11, 2012, the
Union filed objections to the election. On June 28, 2012,
a hearing on the challenged ballot and the objections was
held. On July 18, 2012, the hearing officer issued a re-
port recommending that the challenged ballot be opened
and counted. If the revised tally of ballots disclosed that
a majority of valid votes had not been cast for the Union,
the hearing officer recommended that a rerun election be
conducted, having further recommended that three objec-
tions be sustained. On August 9, 2012, the Respondent
filed exceptions to the hearing officer’s report. On Sep-
tember 28, 2012, the Board adopted the hearing officer’s
report, findings, and recommendations. On October 12,
2012, the challenged ballot was opened and counted.
The revised tally of ballots disclosed that a majority of
valid votes had not been cast for the Union. According-
ly, a rerun election will be conducted at an appropriate
date, time, and place to be determined by the Regional
Director.
On March 18, 2013, the Board issued a Decision and
Order in Case 14–CA–087886, finding, among other
things, that the Respondent violated Section 8(a)(5) and
HEARTLAND HUMAN SERVICES 3
(1) by withdrawing recognition from the Union as the
exclusive collective-bargaining representative of the unit.
After the hearing officer’s report issued, the Respond-
ent engaged in the following conduct at issue here:
1. About August 8, 2012, the Respondent ceased giv-
ing employees raises on their anniversary dates as re-
quired by the wage and step schedule set forth in appen-
dix A of the collective-bargaining agreement described
above.
2. About September 21, 2012, the Respondent changed
its 401(k) plan and provider.
3. About September 22, 2012, the Respondent in-
creased the premium for family and dependent health
insurance benefits.
4. The subjects set forth above in paragraphs 1, 2, and
3 relate to wages, hours, and other terms and conditions
of employment of the unit and are mandatory subjects for
the purposes of collective bargaining.
5. The Respondent engaged in the conduct described
above in paragraphs 1, 2, and 3 without prior notice to
the Union and without affording the Union an opportuni-
ty to bargain with the Respondent with respect to this
conduct.
CONCLUSION OF LAW
By the conduct described above in paragraphs 1, 2, and
3 the Respondent has been failing and refusing to bargain
collectively and in good faith with the exclusive collec-
tive-bargaining representative of its employees in viola-
tion of Section 8(a)(5) and (1) of the Act. The Respond-
ent’s unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found the Respondent violated Section 8(a)(5) by, since
about August 8, 2012, ceasing to give employees raises
on their anniversary dates as required by the wage and
step schedule set forth in appendix A of the collective-
bargaining agreement; since about September 21, 2012,
changing its 401(k) plan and provider; and since about
September 22, 2012, increasing the premium for family
and dependent health insurance benefits, we shall order
the Respondent to rescind these unilateral changes and
restore the status quo ante until such time as the Re-
spondent and the Union reach an agreement for a new
collective-bargaining agreement or a lawful impasse
based on good-faith negotiations. We shall also order the
Respondent to make the unit employees whole for any
losses attributable to the Respondent’s unlawful conduct,
as set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971); and Kraft
Plumbing & Heating, 252 NLRB 891 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
In addition, we shall order the Respondent to reim-
burse the unit employees in an amount equal to the dif-
ferences in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
had the Respondent not violated Section 8(a)(5) as con-
cluded above. Further, we shall order the Respondent to
submit the appropriate documentation to the Social Secu-
rity Administration so that when backpay is paid, it will
be allocated to the appropriate periods.4
ORDER
The National Labor Relations Board orders that the
Respondent, Heartland Human Services, Effingham, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with American Federation of State, County
and Municipal Employees (AFSCME), Council 31,
AFL–CIO as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit by unilaterally ceasing to give employees raises on
their anniversary dates as required by the wage and step
schedule set forth in appendix A of the collective-
bargaining agreement; by unilaterally changing the em-
ployees’ 401(k) plan and provider; and by unilaterally
increasing premiums for family and dependent health
insurance benefits, all without prior notice to the Union
and without affording the Union an opportunity to bar-
gain with the Respondent with respect to this conduct
and the effects of this conduct. The unit is:
All full-time and regular part-time employees em-
ployed by Respondent at its Effingham, Illinois facility,
excluding office clerical and professional employees,
guards and supervisors as defined in the Act.

4 The Acting General Counsel has requested a notice-reading reme-
dy. We agree that this special remedy is appropriate to dispel the ef-
fects of the Respondent’s serious and persistent unfair labor practices,
especially in light of the Respondent’s repetition of the same type of
misconduct previously found unlawful and previously found to warrant
such a remedy. See Heartland Human Services, 359 NLRB No. 76,
supra. Therefore, we will require that the Respondent’s executive
director or, at the Respondent’s option, a Board agent in the executive
director’s presence, read the remedial notice to the Respondent’s em-
ployees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(b) 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) Rescind the unilateral changes in terms and condi-
tions of employment and restore the status quo ante until
such time as the Respondent and the Union reach an
agreement for a new collective-bargaining agreement or
a lawful impasse based on good-faith negotiations.
(b) Make the unit employees whole, with interest, for
any losses sustained due to the unlawfully imposed
changes in wages, benefits, and other terms and condi-
tions of employment in the manner set forth in the reme-
dy section of this decision.
(c) Compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one
lump sum, and file a report with the Social Security Ad-
ministration allocating the unit employees’ backpay
awards to the appropriate calendar quarters for each em-
ployee.
(d) Within 14 days after service by the Region, post at
its facility in Effingham, Illinois, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted and maintained for 60 consecu-
tive 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. 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 Re-
spondent shall duplicate and mail, at its own expense,
copies of the notice to all current employees and former
employees employed by the Respondent at any time
since about August 8, 2012.
(e) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by the Respondent’s executive

5 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.”
director or, at the Respondent’s option, by a Board agent
in the executive director’s presence.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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.
Dated, Washington, D.C. October 31, 2013
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, 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
violated 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 recognize and bargain with
American Federation of State, County and Municipal Employ-
ees (AFSCME), Council 31, AFL–CIO (the Union) as the ex-
clusive collective-bargaining representative of the employees in
the following appropriate unit by unilaterally ceasing to give
employees raises on their anniversary dates as required by the
wage and step schedule set forth in appendix A of the collec-
tive-bargaining agreement; by unilaterally changing the em-
ployees’ 401(k) plan and provider; and by unilaterally increas-
ing premiums for family and dependent health insurance bene-
fits without prior notice to the Union, and without affording the
HEARTLAND HUMAN SERVICES 5
Union an opportunity to bargain with us with respect to this
conduct and the effects of this conduct. The unit is:
All full-time and regular part-time employees em-
ployed by us at our Effingham, Illinois facility, exclud-
ing office clerical and professional employees, 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 rescind the unilateral changes we made to the
terms and conditions of employment for our unit em-
ployees and restore the status quo ante until such time as
we reach an agreement with the Union for a new collec-
tive-bargaining agreement or a lawful impasse based on
good-faith negotiations.
WE WILL make our unit employees whole for any loss-
es they sustained due to the unlawfully imposed changes
in wages, benefits, and other terms and conditions of
employment, with interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file a report with the Social Security
Administration allocating the backpay awards to the ap-
propriate calendar quarters.
HEARTLAND HUMAN SERVICES