New Link, Ltd.,

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 118 (N.L.R.B. 2004)

343 NLRB No. 118
New Link, Ltd., Cherlayne, Inc., Inn Site, Inc., Forrer
Community Living Ctr., Inc., and Lafayette
Special Care Ctr., Inc. and Council 25, Ameri-
can Federation of State, County and Municipal
Employees, AFL–CIO. Case 7–CA–47639
December 16, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by the
Union on July 1, 2004, the General Counsel issued the
complaint on September 1, 2004, against New Link, Ltd.,
Cherlayne, Inc., Inn Site, Inc., Forrer Community Living
Ctr., Inc., and Lafayette Special Care Ctr., Inc., collec-
tively referred to as the Respondent, alleging that it has
violated Section 8(a)(1), (3), and (5) of the Act. The
Respondent failed to file an answer.
On November 9, 2004, the General Counsel filed a
Motion for Default Judgment with the Board. On No-
vember 16, 2004, the Board issued an order transferring
the proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides 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 stated
that unless an answer was filed by September 15, 2004,
all the allegations in the complaint would be considered
admitted. Further, the undisputed allegations in the Gen-
eral Counsel’s motion disclose that the Region, by letter
dated September 30, 2004, notified the Respondent that
unless an answer was received by October 7, 2004, a
motion for default judgment would be filed.
By letter dated October 7, 2004, the Respondent re-
quested an extension of time to file an answer. On Octo-
ber 15, 2004, the Regional Director issued an Order Ex-
tending Time to file an Answer to October 21, 2004.
Nevertheless, the Respondent has failed to file an an-
swer.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s motion for default judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, with facilities in
Detroit, Michigan, and Lincoln Park, Michigan, has been
engaged in the management and operation of adult foster
care homes. The Respondent’s New Link, Ltd. facility,
herein also called the New Link facility, is located at
14531 Vaughn, Detroit, Michigan. The New Link facil-
ity is the only facility involved in this proceeding.
During calendar year 2003, the Respondent, in con-
ducting its operations described above, had gross revenue
in excess of $100,000, and purchased goods and materi-
als valued in excess of $5000 and caused said goods and
materials to be shipped from points located outside the
State of Michigan directly to its Michigan facilities.
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 Council 25, American Federation
of State, County and Municipal Employees, AFL–CIO,
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, the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:
CeDel Murff Owner
Diane Brown Office Manager
Barbara McGresham Human Resource Manager
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 direct care workers
employed by the Respondent at its facilities located at
New Link, Ltd., 14531 Vaughn, Detroit, Michigan,
Cherlayne, Inc., 305 E. Grand Boulevard, Detroit,
Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi-
gan, Forrer Community Living Center, Inc., 19950 For-
rer, Detroit, Michigan, and Lafayette Special Care Cen-
ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but
excluding guards and supervisors as defined in the Act.
On March 8, 2004, in Case 7–RC–22601, the National
Labor Relations Board certified the Union as the exclu-
sive collective-bargaining representative of the unit.
At all times since March 8, 2004, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On June 21, 2004, the Respondent, at the New Link
facility, through its agent, Barbara McGresham, coer-
cively induced employees to withdraw currently pending
unfair labor practice charges filed against the Respondent
with the Board and accept a change in shift or face dis-
charge.
The Respondent, at the New Link facility, through its
agent, CeDel Murff, changed the job duties of employee
Catherine King by the following conduct:
(a) in about late March 2004, by eliminating her
driving responsibilities;
(b) in about early April 2004, by removing her
as medication coordinator and reducing her wages
by 10 cents an hour.
The Respondent engaged in the conduct described
above because Catherine King engaged in activities on
behalf of and in support of the Union, and to discourage
employees from engaging in these and other concerted
protected activities.
On about June 21, 2004, the Respondent, by its agent
Barbara McGresham, at the New Link facility, bypassed
the Union and dealt directly with employees in the unit
by encouraging employees to accept a change from day
to afternoon shift.
The Respondent implemented changes in Catherine
King’s job duties, title, and wages, and dealt directly
with employees regarding changes in their shifts, without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain with the Respondent with
respect to this conduct and the effects of this conduct on
the unit. The subjects set forth above relate to wages,
hours, and other terms and conditions of employment of
the unit and are mandatory subjects for the purposes of
collective bargaining.
On June 22, 2004, the Union, by letter, requested that
the Respondent furnish it with information regarding
medical certification submitted by, medical complica-
tions, medical errors committed by, and any recipient
rights complaints involving the work performance of
Catherine King, and a list of all dates and times that re-
cipient rights came into the New Link facility in the pre-
vious 18 months, and the results of such visits.
The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive bargaining repre-
sentative of the unit.
Since June 22, 2004, the Respondent has failed and re-
fused to provide the Union with the requested informa-
tion described above.
CONCLUSIONS OF LAW
1. By coercively inducing employees to withdraw un-
fair labor practice charges filed with the Board and by
informing them that they must accept a change in shift or
face discharge, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, and has thereby
violated Section 8(a)(1) of the Act.
2. By changing the job duties, title, and rate of pay of
employee Catherine King, the Respondent has discrimi-
nated in regard to the hire or tenure or terms and condi-
tions of employment of its employees, thereby discourag-
ing membership in a labor organization, in violation of
Section 8(a)(3) and (1) of the Act.
3. Further, the Respondent has failed and refused to
bargain collectively and in good faith with the Union as
the exclusive collective-bargaining representative of its
employees, in violation of Section 8(a)(5) and (1) of the
Act, by implementing changes in Catherine King’s job
duties, title, and rate of pay, without providing the Union
with notice and an opportunity to bargain; by bypassing
the Union and dealing directly with employees by en-
couraging them to accept changes in their shifts; and by
failing and refusing to provide the Union with informa-
tion that is necessary for, and relevant to, the Union’s
role as the exclusive collective-bargaining representative
of the unit.
The Respondent’s unfair labor practices affect com-
merce 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 has violated Section 8(a)(3),
(5), and (1) of the Act by unilaterally changing Catherine
King’s job duties, title, and rate of pay, we shall order the
Respondent to restore her to her previous wage rate and
job duties and former position of medication coordinator
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
any other rights or privileges previously enjoyed, and to
make her whole for any loss of earnings and other bene-
fits she suffered as a result of the discrimination against
her. Backpay shall be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall also be required to remove
from its files all references to the changes in Catherine
NEW LINK, LTD. 3
King’s job duties, title, and rate of pay, and to notify her
in writing that this has been done and the changes will
not be used against her in any way.
In addition, we shall require the Respondent to furnish
the Union with the information it requested on June 22,
2004.
ORDER
The National Labor Relations Board orders that the
Respondent, New Link, Ltd., Cherlayne, Inc., Inn Site,
Inc., Forrer Community Living Ctr., Inc., and Lafayette
Special Care Ctr., Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively inducing employees to withdraw unfair
labor practice charges filed with the Board and accept a
change in shift or face discharge.
(b) Changing employees’ wages, hours, or other terms
and conditions of employment, or otherwise discriminat-
ing against employees, because they support Council 25,
American Federation of State, County and Municipal
Employees, AFL–CIO, or any other labor organization,
and engage in protected concerted activities, or to dis-
courage employees from engaging in such activities.
(c) Failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of em-
ployees in the following appropriate unit, by unilaterally
changing employees’ wages, hours, or other terms and
conditions of employment, without providing the Union
with notice and an opportunity to bargain. The appropri-
ate unit is:
All full-time and regular part-time direct care workers
employed by the Respondent at its facilities located at
New Link, Ltd., 14531 Vaughn, Detroit, Michigan,
Cherlayne, Inc., 305 E. Grand Boulevard, Detroit,
Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi-
gan, Forrer Community Living Center, Inc., 19950 For-
rer, Detroit, Michigan, and Lafayette Special Care Cen-
ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but
excluding guards and supervisors as defined in the Act.
(d) Bypassing the Union and dealing directly with unit
employees regarding wages, hours, or other terms and
conditions of employment.
(e) Failing and refusing to provide the Union with in-
formation that is necessary for, and relevant to, the Un-
ion’s performance of its duties as the exclusive bargain-
ing representative of the unit.
(f) 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) Within 14 days from the date of this Order, restore
Catherine King to her previous wage rate and job duties
and to her former position as medication coordinator or,
if that position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority or any
other rights or privileges previously enjoyed.
(b) Make Catherine King whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful changes in her job duties, title, and rate of pay, with
interest, in the manner set forth in the remedy section of
this decision.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful
changes in Catherine King’s job duties, title, and rate of
pay, and within 3 days thereafter, notify her in writing
that this has been done, and that the unlawful changes
will not be used against her in any way.
(d) Furnish the Union with the information it requested
on June 22, 2004.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the unit set forth above.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its New Link facility in Detroit, Michigan, copies of the
attached notice marked “Appendix.”1 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s author-
ized 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
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

1 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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 March 2004.
(h) 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.
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT coercively induce employees to with-
draw unfair labor practice charges filed with the Board
and accept a change in shift or face discharge.
WE WILL NOT change employees’ wages, hours, or
other terms and conditions of employment, or otherwise
discriminate against employees, because they support
Council 25, American Federation of State, County and
Municipal Employees, AFL–CIO, or any other labor
organization, and engage in protected concerted activi-
ties, or to discourage employees from engaging in such
activities.
WE WILL NOT fail and refuse to bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following appropriate unit, by unilater-
ally changing employees’ wages, hours, or other terms
and conditions of employment, without providing the
Union with notice and an opportunity to bargain. The
appropriate unit is:
All full-time and regular part-time direct care workers
employed by the Respondent at its facilities located at
New Link, Ltd., 14531 Vaughn, Detroit, Michigan,
Cherlayne, Inc., 305 E. Grand Boulevard, Detroit,
Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi-
gan, Forrer Community Living Center, Inc., 19950 For-
rer, Detroit, Michigan, and Lafayette Special Care Cen-
ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but
excluding guards and supervisors as defined in the Act.
WE WILL NOT bypass the Union and deal directly with
employees regarding wages, hours, or other terms and
conditions of employment.
WE WILL NOT fail and refuse to furnish the Union with
information that is necessary for, and relevant to, the
Union’s performance of its duties as the exclusive collec-
tive-bargaining representative of the unit employees.
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.
WE WILL, within 14 days from the date of the Board’s
Order, restore Catherine King to her previous wage rate
and job duties and to her former position as medication
coordinator or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously en-
joyed.
WE WILL make Catherine King whole for any loss of
earnings and other benefits suffered as a result of the
unlawful changes in her job duties, title, and rate of pay,
with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful changes in Catherine King’s job duties, title,
and rate of pay, and within 3 days thereafter, notify her
in writing that this has been done and that the unlawful
changes will not be used against her in any way.
WE WILL furnish the Union with the information it re-
quested on June 22, 2004.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of the employees in the unit set forth above.
NEW LINK, LTD., CHERLAYNE, INC., INN SITE,
INC., FORRER COMMUNITY LIVING CTR., INC.,
AND LAFAYETTE SPECIAL CARE CTR., INC.