Pimlico Elder Care

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1086 (N.L.R.B. 1989)

1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pimlico Elder Care (Formerly Mt. Sinai Nursing
Home, Inc.) t/a Pimlico Elder Care and Dis-
trict 1199E, National Union of Hospital and
Health Care Employees , AFL-CIO. Cases 5-
CA-19792 and 5-CA-20397.
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
Upon a charge filed by District 1199E, National
Union of Hospital and Health Care Employees,
AFL-CIO, the Union, in Case 5-CA-19792, the
General Counsel of the National Labor Relations
Board issued a complaint on October 31, 1988,
against Mt. Sinai Nursing Home , Inc. t/a Pimlico
Elder Care, the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that the Respondent and
Union were bound to a July 1, 1985, to July 1,
1988 collective-bargaining agreement during the
term of which the Respondent unilaterally ceased
making contractually required health and welfare
contributions, stopped remitting dues to the Union,
and failed to pay contractual wage rates to unit
employees. Although properly served with copies
of the charge and complaint, the Respondent did
not file an answer.
On April 11, 1989,1 counsel for the General
Counsel wrote the Respondent that no answer had
been filed to the complaint. The Respondent re-
turned the April 11 letter to counsel for the Gener-
al Counsel with an April 18 note acknowledging
receipt and stating that "business ceased operation
today, on event [sic] out of business permanently
due to bankruptcy!"
On April 18, the Union filed a charge against the
Respondent in Case 5-CA-20397.2 The charge,
sent by certified mail to the Respondent at its busi-
ness office at 4613 Park Heights Road, Baltimore,
Maryland, was returned "unclaimed" on May 19.
On April 25, counsel for the General Counsel
sent a copy of the charge in Case 5-CA-20397 and
a transmittal letter to Maury Leibowitz, the Re-
spondent's former administrator, at his new place
of employment. The charge, transmittal letter, and
NLRB Appearance and Designation of Representa-
tive Forms were also hand delivered to the recep-
tionist at Leibowitz' new place of employment on
April 26.
All dates are in 1989 unless otherwise noted
a This charge alleged that the Respondent unilaterally abrogated the
contractual wage -rate provision for unit employees about April 14
On April 27, Leibowitz wrote counsel for the
General Counsel acknowledging receipt of the
charge in Case 5-CA-20397 and stating that the
Respondent did not intend to retain an attorney.
Leibowitz wrote that the Respondent's facility was
defunct and that it was in the process of filing for
bankruptcy.
On May 8, the General Counsel issued an order
postponing indefinitely the hearing in Case 5-CA-
19792. On July 21, the General Counsel issued an
order consolidating cases, amended complaint, con-
solidated complaint, and notice of hearing (consoli-
dated complaint) in Cases 5-CA-19792 and 5-CA-
20397.
The consolidated complaint alleges, inter alia,
that the Union is the exclusive representative of an
appropriate unit of the Respondent's employees
and that this recognition has been embodied in suc-
cessive collective-bargaining agreements, the most
recent of which runs from July 1, 1988, to July 1,
1990. Paragraph 8(a) of the consolidated complaint
alleges that about January 11, 1988, the Respond-
ent unilaterally ceased making contractually estab-
lished health and welfare contributions. Paragraph
8(b) alleges that the Respondent ceased remitting
contractually required dues to the Union about the
same date. Paragraph 8(c) alleges that the Re-
spondent unilaterally changed the contractual wage
rate for unit employees about May 1, 1988. Para-
graph 8(d) alleges that, about April 12, 1989, the
Respondent unilaterally ceased paying wages to
unit employees. Paragraph 10 of the consolidated
complaint alleges that the Respondent undertook
the acts described in paragraph 8 without affording
the Union an opportunity to bargain.
On July 25, the Respondent submitted an answer
to the consolidated complaint.3 The answer admit-
ted, inter alia, the Union's representative status and
that the parties have been bound to a succession of
collective-bargaining agreements. The Respondent
also admitted that "Item 8 is essentially correct,
since it shows the increasing financial problems the
facility was having at the time." With respect to
the allegations in paragraph 8(d), the Respondent
said that it ceased operations because of financial
difficulties and had since initiated bankruptcy pro-
ceedings. The Respondent disputed the allegations
in paragraph 10 of the consolidated complaint, stat-
ing that:
Item 10 is incorrect since negotiations had
started by this time for the renewal of the con-
tract due to end 6/30/88. The Union and the
facility eventually settled the issue of wages in
7 The answer was prepared by Leibowitz , who wrote that the Re-
spondent would not hire an attorney to represent it
296 NLRB No. 139
PIMLICO ELDER CARE 1087
12/88 and cleared up other outstanding items
at that time. A new salary schedule was
worked out and agreed upon, and it was then
followed by the facility.
On August 17, counsel for the Acting General
Counsel filed a Motion for Transfer and Continu-
ance of Case Before the Board and for Summary
Judgment. In the motion, counsel argued that the
Respondent's July 25 answer was legally insuffi-
cient and raised no genuine issue of material fact.
Specifically, counsel stated that the Respondent's
explanation for ceasing operations did not consti-
tute a legally sufficient denial of the alleged con-
duct. Counsel further claimed that the Respond-
ent's assertion that it negotiated and reached an
agreement with the Union for a contract to replace
the agreement expiring June 30, 1988 , even if true,
was irrelevant because the Respondent admitted
unilaterally changing contractual terms and condi-
tions of employment during the term of a con-
tract.4
On August 23, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted. The Respondent filed no response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent admits the operative facts
giving rise to the unfair labor practices alleged in
the consolidated complaint. It acknowledges the
exclusive representative status of the Union and the
appropriateness of the unit. It concedes that there
have been a succession of collective-bargaining
agreements between the parties, culminating in the
current 1988-1990 contract. It also admits that, on
dates alleged in the consolidated complaint, it uni-
laterally ceased making health and welfare contri-
butions, stopped remitting dues to the Uhion, modi-
fied the contractual wage rate, and later stopped
paying wages to unit employees.
As an explanation for its unilateral acts, the Re-
spondent claims financial difficulties. And, while
admitting that it terminated contractual wages on
April 12, the Respondent states that it has ceased
operations and instituted bankruptcy proceedings.
However, these claims of financial difficulty, de-
functness , and bankruptcy are insufficient to refute
the violations alleged. See generally Goldstein Co.,
4 Counsel for the Acting General Counsel also noted that the Respond-
ent's answer did not assert that the conduct alleged in par 8(d) of the
consolidated complaint was ever the subject of negotiation with the
Union.
274 NLRB 682 (1985); Adirondack Foundries, 286
NLRB 263 (1987).
The Respondent additionally argues , contrary to
the allegations in paragraph 10 of the consolidated
complaint, that it bargained and reached agreement
with the Union in December 1988 over wages and
"other outstanding issues." However, even assum-
ing the truth of the Respondent's assertions, they
fail to raise a genuine issue of material fact war-
ranting a hearing. Thus, the Respondent's represen-
tation that an agreement was reached in late 1988
raises no issue of fact regarding its alleged, and ad-
mitted, unilateral acts in January and May 1988
and its concomitant obligation to make whole em-
ployees and the Union for its failure to bargain
with the Union. See, e.g., Bethlehem Steel Corp.,
283 NLRB 254, 255 (1987). Neither would negotia-
tions nor a December 1988 agreement on wages
and "outstanding issues" immunize the Respond-
ent's admitted termination of unit employee wages
in April 1989.
Therefore, we find that the Respondent has not
raised any issue properly litigable in this unfair
labor practice proceeding. Accordingly, we grant
the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Maryland corporation, oper-
ates a domiciliary health care facility in Baltimore,
Maryland, providing personal care services , meals,
and activities.5 During the calendar year ending
April 15, 1989, at which time the Respondent
ceased operations, the Respondent derived gross
revenues in excess of $100,000. During this same
period, the Respondent purchased and received at
its Baltimore , Maryland facility products, goods,
and materials valued in excess of $5000 from enter-
prises located within the State of Maryland, includ-
ing Acme Paper & Supply Co., Inc. and Holstein
Paper Co., each of which enterprises received the
products, goods, and materials directly from points
outside the State of Maryland. We find that the
Respondent is an employer engaged in commerce
within the meaning of Section 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.
S Prior to May 1. 1988, the Respondent operated as a nursing home
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
The following employees of the Respondent con-
stitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time service and
maintenance employees who work regularly
twenty (20) or more hours in the work week,
including nursing assistants , housekeeping em-
ployees, dietary employees and maintenance
employees, but excluding all office clerical em-
ployees, licensed practical nurses, registered
nurses, professionals, guards, and supervisors
as defined in the Act.
Since about 1970, and at all material times, the
Union has been the designated and recognized ex-
clusive representative of the unit under Section 9(a)
of the Act. This recognition has been embodied in
a succession of collective-bargaining agreements
between the Respondent and the Union, the most
recent of which is effective by its terms from July
1, 1988, to July 1, 1990. At all times since about
1970, the Union, by virtue of Section 9(a) of the
Act, has been the exclusive representative of the
Respondent's employees for the purpose of collec-
tive bargaining.
B. Refusal to Comply with the Contract
About January 11, 1988, during the term of the
1985-1988 collective-bargaining agreement, the Re-
spondent modified the existing terms and condi-
tions of employment in the unit by eliminating the
contractually established health and welfare contri-
butions. About the same date, the Respondent uni-
laterally ceased remitting dues to the Union as re-
quired by the contract. About May 1, 1988, the Re-
spondent unilaterally modified the wage provision
of the collective-bargaining agreement. About
April 12, 1989, during the term of the current con-
tract, the Respondent unilaterally ceased paying
wages to unit employees.
The contractual provisions that the Respondent
eliminated related to wages, hours, and other terms
and conditions of employment in the unit and are
mandatory subjects for purposes of collective bar-
gaining.
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
2. The unfair labor practices of the Respondent,
described above , affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain 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. 6
We shall order the Respondent to make whole
unit employees for any losses they suffered by the
Respondent 's failure to adhere to the terms of the
contract, Ogle Protection Service, 183 NLRB 682
(1970), with interest to be computed in the manner
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987). We shall also order the Resd-
pondent to make the required health and welfare
fund payments it failed to make since January 11,
1988.7 We shall further order the Respondent to
make whole unit employees for any loss of benefits
caused by its failure to make these required fund
contributions and to reimburse employees for any
expenses ensuing from the Respondent 's unlawful
failure to make such contributions , as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
( 1980), enfd . 661 F.2d 940 (9th Cir. 1981).
ORDER
The National Labor Relations Board orders that
the Respondent, Pimlico Elder Care (formerly Mt.
Sinai Nursing Home, Inc.) t/a Pimlico Elder Care,
Baltimore, Maryland, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain with the Union by failing
to make required contributions on behalf of its unit
employees to the health and welfare funds; by fail-
ing to remit to the Union those dues withheld from
employees' paychecks as required by the contract;
and by failing to pay unit employees the contrac-
tually prescribed wage rates.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
CONCLUSIONS OF LAW
1. By the acts described above in paragraph II,B,
the Respondent has failed and refused, and is fail-
ing and refusing, to bargain collectively and in
good faith with the representative of its employees,
and the Respondent thereby has been engaging in
6 Because it is apparent from the General Counsel 's motion that the
Respondent closed its operations in April 1989 , we shall require the Re-
spondent to mail copies of the notice to all unit employees employed at
the time of the closure See, e g ., Print-Quit, 262 NLRB 857, 862 fn 19
(1982)
Any additional amounts owed with respect to these fund contribu-
tions shall be calculated in the manner set forth in Merryweather Optical
Co., 240 NLRB 1213 (1979)
PIMLICO ELDER CARE
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with District 1199E, Na-
tional Union of Hospital and Health Care Employ-
ees, AFL-CIO, as the exclusive representative of
the employees in the following unit:
All full-time and regular part-time service and
maintenance employees who work regularly
twenty (20) or more hours in the work week,
including nursing assistants , housekeeping em-
ployees, dietary employees and maintenance
employees , but excluding all office clerical em-
ployees, licensed practical nurses , registered
nurses, professionals , guards, and supervisors
as defined in the Act.
(b) Pay into the funds, on behalf of its unit em-
ployees, those health and welfare contributions it
failed to make as a result of the unlawful discon-
tinuation of fund payments , in the manner set forth
in the remedy section of this decision.
(c) Make whole the unit employees for any loss
of pay and benefits suffered as a result of the Re-
spondent's failure to abide by the terms of the col-
lective-bargaining agreement with the Union, in-
cluding making required wage payments and health
and welfare contributions , in the manner set forth
in the remedy section of this decision.
(d) Remit to the Union the union dues deducted
from employees' paychecks, with interest.
(e) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records , timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Mail a copy of the attached notice marked
"Appendix."8 to the Union and to all unit employ-
ees who were employed at the Baltimore, Mary-
land facility. Copies of the notice, on forms provid-
ed by the Respondent's authorized representative,
shall be mailed by the Respondent immediately
upon receipt.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
1089
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to make contributions on
behalf of our unit employees to the contractual
health and welfare funds.
WE WILL NOT fail to remit to the Union dues
withheld from unit employees' paychecks, as re-
quired by the contract.
WE WILL NOT fail to pay unit employees the
contractually required wage rates.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request , bargain with the Union as
the exclusive representative of our employees in
the bargaining unit:
All full-time and regular part -time service and
maintenance employees who work regularly
twenty (20) or more hours in the work week,
including nursing assistants , housekeeping em-
ployees, dietary employees and maintenance
employees, but excluding all office clerical em-
ployees, licensed practical nurses, registered
nurses, professionals, guards, and supervisors
as defined in the Act.
WE WILL adhere to the terms of our collective-
bargaining agreements with the Union, including,
but not limited to, the provisions governing health
and welfare fund contributions , dues remittance,
and wage rates.
WE WILL make whole the unit employees for
any losses or expenses they suffered as a result of
our failure to abide by the terms of our collective-
bargaining agreements with the Union, including
paying employees owed wages and making re-
quired contributions to employees ' health and wel-
fare funds.
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remit to the Union the union dues de-
ducted from employees ' paychecks, with interest.
PIMLICO ELDER CARE (FORMERLY
MT. SINAI NURSING HOME , INC.) T/A
PIMLICO ELDER CARE