Mid-Wilshire Health Care Center

National Labor Relations Board - Board Decisions

Aug 15, 2000

331 N.L.R.B. 1032 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
JPH Management, Inc. d/b/a Mid-Wilshire Health
Care Center and Health Care Workers Union,
Service Employees International Union, Local
399, AFL–CIO. Case 31–CA–24055
August 15, 2000
DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY
JUDGMENT AND REMANDING
BY MEMBERS FOX, LIEBMAN, AND BRAME
On a charge filed by the Union on August 16, 1999,1
and an amended charge filed by the Union on October
26, the General Counsel of the National Labor Relations
Board issued a complaint on October 28 against JPH
Management, Inc. d/b/a Mid-Wilshire Health Care Cen-
ter, the Respondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations Act. The
Respondent is acting pro se in this proceeding. Although
copies of the charge, amended charge, and complaint
were properly served on the Respondent, it failed to file
an answer to the complaint within the 14-day time period
set forth in Section 102.20 of the Board’s Rules and
Regulations. On December 13 the Respondent submitted
to the Region a letter purporting to answer the allegations
of the complaint. On January 24, 2000, the General
Counsel filed a Motion for Summary Judgment with the
Board. On January 28, 2000, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. On
February 14, 2000, the Respondent filed with the Board a
response to the Notice to Show Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively states
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. The undisputed allegations in the Motion for
Summary Judgment disclose (1) that the Region, by let-
ter dated December 9, notified the Respondent that
unless an answer to the complaint were received by De-
cember 17, a Motion for Summary Judgment would be
filed; and (2) that the Respondent, by Tad Yokoyama,
administrator, sent a letter to the Region, dated Decem-
ber 13, stating, in relevant part: “I totally disagree with
the Compl[a]int filed against us” and “[a]ny other re-
sponses to the Complaint [have] been fully accounted for
in correspondence [to the Region] dated September 7,
1999.” In his Motion for Summary Judgment, the Gen-
eral Counsel stated, inter alia, “[a]lthough the Respon-
dent replied to the December 9, 1999 [letter from the
Region], with a letter dated December 13, 1999, the Re-
spondent, to date, has failed to file any Answer to the
Complaint as required by the Rules.”

1 All dates refer to 1999 unless otherwise indicated.
In its response to the Notice to Show Cause the Re-
spondent states, in relevant part:
My primary reason [as to why the General Counsel’s
Motion for Summary Judgment should not be granted]
is that there was some serious miscommunication 2–3
weeks prior to [the] filing of the motion by the General
Counsel. The General Counsel left at least a couple of
messages for me to return her call but, unfortunately, I
never received those messages. If the General Counsel
had a chance to communicate whatever she was going
to, I feel, we would have had a[n] outcome where our
responses would have been more adequately responded
to.
We find that the alleged “miscommunication” to which
the Respondent refers does not constitute sufficient cause
for failure to file a complete, timely answer to the com-
plaint. As stated above, the Respondent’s deadline for
filing an answer to the complaint was December 17. The
General Counsel filed his Motion for Summary Judg-
ment on January 19, 2000. Therefore, “[m]iscommuni-
cation” occurring “2–3 weeks prior to the filing of the
motion” could only refer back to December 29, 1999, 10
days after the Respondent’s deadline for filing an answer
to the complaint.
We now examine the Respondent’s December 13 letter
to the Region purporting to answer the allegations of the
complaint. Paragraphs 10(a), (b), and (c) of the com-
plaint set forth the operative facts of the alleged unfair
labor practices and allege that the Respondent violated
Section 8(a)(5) and (1) of the Act by (a) failing and
refusing to sign a collective-bargaining agreement that
reflected the terms of an agreement reached between the
Respondent and the Union on June 22, 1999; (b) bypass-
ing the Union and dealing directly with employees in the
unit about their wages and terms and conditions of em-
ployment; and (c) unilaterally rescinding wage increases
granted to unit employees pursuant to the June 22, 1999
collective-bargaining agreement, without giving the Un-
ion advance notice or an opportunity to bargain about
this matter. The Respondent’s December 13 letter to the
Region states in pertinent part:
As a representative of Mid-Wilshire Health Care
Facility, I totally disagree with the Compl[a]int filed
against us. Since May, 1999 the management team
of Mr. Gary Jarvis and I [have bargained] collec-
tively in good faith as [the] representative of the
owners of JPH Management, Inc.
After the completion of [the] new contract on or
about June 24, 1999, and after that period, I submit-
ted the contract to . . . the owner for her approval
331 NLRB No. 129
MID-WILSHIRE HEALTH CARE CENTER 1033
and signature. Even though [the owner] did not
agree on two areas of the contract, we never refused
to bargain collectively. In fact, we have tried con-
tinuously to contact the Union through a third party
. . . but they have not responded. The Union’s posi-
tion is that the new contract has been finalized and
there is no “re-negotiation” for [a] collective bar-
gaining agreement.
Any other responses to the Complaint [have]
been fully accounted for in correspondence to [the
Board Agent], dated September 7, 1999.
The Respondent’s September 7 letter to the Region, in-
corporated by reference into its December 13 letter to the
Region, was the Respondent’s statement of position
submitted to the Region in response to the August 16
unfair labor practice charge. The September 7 letter
states in pertinent part:

The tentative agreement, by its own definition,
not fully worked out or developed, which was a
product of the June 22, 1999 meetings was to be
voted on by the members and also voted on or ap-
proved by the owner of the company. This was
made clear from the onset and has been precedent
from the last bargaining agreement that the owner
had the final approval, not the management team
who attended the meeting. During a telephone con-
versation with [Union negotiator] Mr. David Estrada
on June 29, 1999, it was made clear that the product
of the June 22 meeting would need final approval by
the owner of the company. The membership could
vote for their approval and if there were changes,
they could be rectified before presenting to the
owner. The employer has not unilaterally altered the
terms and conditions of the agreement due to the fact
there is no approved agreement by both parties. In
fact, Mr. Estrada in a private telephone conversation
was asked what are the key deal points to get a con-
sensus, [and] he verbalized three (3), and these were
brought back to the owner. At the June 22 meeting
Mr. Estrada reneged on the private agreement, and
presented an altered proposal. Obviously, this
would need to be approved by the Owner, which she
did not do. . . .
The employer has not interfered with, restrained,
or coerced with any employee. In fact, management
clarified the misunderstanding of the proposal to the
events of the negotiations and perhaps some misrep-
resentation of the facts. It is clear that portions of
the proposal are inconsistent with the format of the
previous agreement and some sections do not make
sense. These areas were explained to the member-
ship, stewards were present, and they agreed it did
not make sense and they could understand why the
owner was not in agreement.

The Board typically has shown some leniency toward
a pro se litigant’s efforts to comply with our procedural
rules. See, e.g., Sam Mikva Management, 329 NLRB
387 (1999); A.P.S. Production, 326 NLRB 1296 (1998).
Under this approach, it is sufficient for a pro se respon-
dent to respond effectively in the negative to the com-
plaint allegations containing the operative facts of the
alleged unfair labor practices. Carpentry Contractors,
314 NLRB 824, 825 (1994).
Here, the Respondent’s September 7 letter is merely its
precomplaint statement of position in response to the
August 16 initial unfair labor practice charge. As such,
and standing alone, it would not constitute a sufficient
answer to the subsequent October 28 complaint. Central
States Xpress, 324 NLRB 442, 443–444 (1997). But the
Board carefully and strictly scrutinizes postcharge, pre-
complaint statements of position submitted by pro se
respondents in lieu of the formal answers to complaints
required by Section 102.20 of the Board’s Rules and
Regulations. Id. Central States Xpress presented cir-
cumstances very similar to those presented here, and the
Board found a postcharge, precomplaint statement of
position acceptable in lieu of an answer to the complaint.
Specifically, (1) the respondent in Central States Xpress
was acting pro se; (2) it resubmitted its postcharge state-
ment of position with its subsequent informal answer to
the complaint and expressly intended its postcharge
statement of position to serve as an answer to the subse-
quent complaint; and (3) the postcharge statement of
position constituted a sufficiently clear denial of the alle-
gations of the complaint containing the operative facts of
the alleged unfair labor practices. Id.
We find that Central States Xpress is controlling here.
Thus, the Respondent is acting pro se, and it expressly
incorporated by reference its September 7 postcharge,
precomplaint statement of position in its subsequent De-
cember 13 informal answer to the complaint. Further, as
discussed below, its September 7 postcharge statement of
position, together with its December 13 informal answer
to the complaint, constitutes a sufficiently clear denial of
the allegations in complaint paragraphs 10(a) (refusal to
execute contract) and (c) (unilaterally rescinding wage
increases) to warrant denial of the General Counsel’s
Motion for Summary Judgment on those paragraphs.
More specifically, in its December 13 letter, excerpted
above, the Respondent asserted that the alleged collec-
tive-bargaining agreement of June 22 was subject to the
approval and signature of the Respondent’s owner, and
that although the owner did not agree with two “areas” of
the contract, the Respondent “never refused to bargain
collectively.” Additionally, in the Respondent’s Sep-
tember 7 letter, incorporated by reference into its De-
cember 13 letter, the Respondent asserted that the June
22 agreement was tentative, subject to the approval of the
Respondent’s owner, and that “[t]his was made clear
from the onset and has been precedent from the last bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
gaining agreement that the owner had the final approval,
not the management team who attended the meeting.”
Consequently, the Respondent also asserted in its Sep-
tember 7 letter that it “has not unilaterally altered the
terms and conditions of the agreement due to the fact
there is no approved agreement by both parties. . . . At
the June 22 meeting Mr. Estrada reneged on the private
agreement, and presented an altered proposal. Obvi-
ously, this would need to be approved by the owner,
which she did not do.”
These sufficiently detailed responses constitute an ef-
fective denial of the allegations in paragraphs 10(a) and
(c) of the complaint. Significantly, with respect to com-
plaint paragraph 10(a), the Respondent has supplied an
answer for why it did not sign the allegedly agreed-upon
collective-bargaining agreement, and with respect to
paragraph 10(c), the Respondent stated that it “has not
unilaterally altered the terms and conditions of the
agreement.” The Respondent’s effective denials of the
substance of these complaint allegations raise substantial
and material issue of fact warranting a hearing before an
administrative law judge. Therefore, we deny the Gen-
eral Counsel’s Motion for Summary Judgment as to
complaint paragraphs 10(a) and (c).
However, in its correspondence of December 13 and
September 7, the Respondent has not effectively denied
complaint paragraphs 1–9, 10(b), and 11–14. Accord-
ingly, in the absence of good cause2 being shown for the
failure to file a sufficient answer as to complaint para-
graphs 1–9, 10(b), and 11–14, we grant the General
Counsel’s Motion for Summary Judgment with respect to
those paragraphs.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, JPH Manage-
ment, Inc., a California corporation, has owned and oper-
ated its subsidiary, Mid-Wilshire Health Care Center, a
nursing home for the elderly located in Los Angeles,
California. Annually, in the course and conduct of oper-
ating Mid-Wilshire Health Care Center, the Respondent
purchases and receives goods valued in excess of
$40,000 from other enterprises located in California,
each of which other enterprises has received such goods
in substantially the same form directly from points lo-
cated outside the State of California. Annually, in the
course and conduct of operating Mid-Wilshire Health
Care Center, the Respondent derives gross revenues in
excess of $100,000. 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,
Health Care Workers Union, Service Employees Interna-

2 See discussion, supra.
tional Union, Local 399, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the following positions and have been agents of the Re-
spondent within the meaning of Section 2(13) of the Act
and supervisors of the Respondent within the meaning of
Section 2(11) of the Act: Jeoung Lee, president; II Hie
Lee, vice president; Gary L. Jarvis, consultant and nego-
tiator; and Tad Yokoyama, administrator and negotiator.
The following employees of the Respondent constitute
a unit (the unit) appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
Included: All full-time and regular part-time dietary
employees, housekeeping employees, nursing employ-
ees, clerical employees, laundry employees, mainte-
nance employees and activity assistants employed by
the Respondent at its facility located at 676 South Bon-
nie Brea Street, Los Angeles, California.
Excluded: Bookkeeper, professional employees,
guards, and supervisors, including supervisory LVNs,
as defined in the Act.
Since at least 1996, and at all material times, the Union
has been the designated exclusive collective-bargaining
representative of the unit, and since at least 1996 the Un-
ion has been recognized as the representative by the Re-
spondent. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most recent
of which was effective by its terms from July 1, 1996,
through June 30, 1999. This collective-bargaining
agreement covered rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
of the Respondent’s employees employed in the unit.
Commencing on or before May 1999, and continuously
thereafter, the Union has requested, and is requesting, the
Respondent to bargain collectively with respect to rates
of pay, wages, hours of employment and other terms and
conditions of employment as the exclusive collective-
bargaining representative of all employees in the unit.
Commencing on or about June 24, 1999, and continu-
ously thereafter, the Respondent has failed and refused to
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of the unit by, on or
about August 9, 1999, bypassing the Union and dealing
directly with employees about their wages and terms and
conditions of employment, which constitute mandatory
subjects of bargaining.
CONCLUSION OF LAW
By bypassing the Union and dealing directly with em-
ployees in the unit about their wages and terms and con-
ditions of employment on or about August 9, 1999, the
Respondent has failed and refused to bargain collectively
with the exclusive collective-bargaining representative of
its employees, and has thereby engaged in unfair labor
MID-WILSHIRE HEALTH CARE CENTER 1035
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and 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 has violated Section 8(a)(5)
and (1) of the Act by, on or about August 9, 1999, by-
passing the Union and dealing directly with employees in
the Unit about their wages and terms and conditions of
employment, we shall order it to cease and desist from
dealing directly with employees in the Unit about their
wages and terms and conditions of employment.
ORDER
The National Labor Relations Board orders that the
Respondent, JPH Management, Inc. d/b/a Mid-Wilshire
Health Care Center, Los Angeles, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
SEIU, Local 399, by bypassing the Union and dealing
directly with employees in the following appropriate
unit:
Included: All full-time and regular part-time dietary
employees, housekeeping employees, nursing employ-
ees, clerical employees, laundry employees, mainte-
nance employees and activity assistants employed by
the Respondent at its facility at 676 South Bonnie Brea
Street, Los Angeles, California.
Excluded: bookkeeper, professional employees, guards,
and supervisors, including supervisory LVNs, as de-
fined in the Act.
(b) Interfering with, restraining, and coercing its em-
ployees 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) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
31, 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the

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.”
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since August 9,
1999.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the General Counsel’s
Motion for Summary Judgment is denied with respect to
the allegations set forth in complaint paragraphs 10(a)
and (c), and that this proceeding is remanded to the Re-
gional Director for Region 31 for the purpose of arrang-
ing a hearing before an administrative law judge limited
to the allegations set forth in complaint paragraphs 10(a)
and (c). The administrative law judge shall prepare and
serve on the parties a decision containing findings of
fact, conclusions of law, and recommendations based on
all of the record evidence. Following service of the ad-
ministrative law judge’s decision on the parties, the pro-
visions of Section 102.46 of the Board’s Rules shall be
applicable.

MEMBER BRAME, concurring in part and dissenting in
part.
I would deny the General Counsel’s Motion for Sum-
mary Judgment in toto. Here, in response to the Re-
gion’s request for an answer to the complaint, the Re-
spondent’s administrator, Yokoyama, timely submitted a
letter on December 13, 1999, to the Region stating that “I
totally disagree with the Compl[a]int against us.” Con-
trary to the majority, I find that this letter is a sufficient
denial of all of the complaint allegations to put them at
issue and require the General Counsel to prove them at a
hearing, not just the allegations concerning complaint
paragraphs 10(a) and (c). Accordingly, consistent with
my dissenting position in Kloepfers Floor Covering, Inc.,
330 NLRB 811, 813–814 (2000),1 I would not preclude
this pro se Respondent from an opportunity to defend
against all of the complaint allegations at a hearing.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

1 See also Eckert Fire Protection Co., 329 NLRB 920 (1999) (Mem-
bers Hurtgen and Brame dissenting).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail and refuse to bargain collectively
with Health Care Workers Union, Service Employees
International Union, Local 399, AFL–CIO by bypassing
the Union and dealing directly with our employees in the
following appropriate unit:
Included: All full-time and regular part-time dietary
employees, housekeeping employees, nursing employ-
ees, clerical employees, laundry employees, mainte-
nance employees and activity assistants employed by
us at our facility located at 676 South Bonnie Brea
Street, Los Angeles, California.
Excluded: Bookkeeper, professional employees,
guards, and supervisors, including supervisory LVNs,
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
guaranteed you by Section 7 of the Act.
JPH MANAGEMENT, INC. D/B/A MID-WILSHIRE HEALTH
CARE CENTER