Provident Nursing Home

National Labor Relations Board - Administrative Judge Opinions

Jun 2, 2005

01-CA-042263 (N.L.R.B. Jun. 2, 2005)

JD–41–05
Boston, MA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

HILLARD DEVELOPMENT CORPORATION
d/b/a PROVIDENT NURSING HOME

and Case 1-CA-42263

SERVICE EMPLOYEES INTERNATIONAL UNION
LOCAL 2020, AFL-CIO, CLC

Joseph F. Griffin, Esq., of Boston, MA,
for the General Counsel.
Mike Fadel, of Boston, MA,
for the Charging Party.
Charlene Kaye, of Boston, MA,
for the Respondent-Employer.

DECISION

Statement of the Case

Bruce D. Rosenstein, Administrative Law Judge. This case was tried before me on April
18, 2005 in Boston, Massachusetts, pursuant to a Complaint and Notice of Hearing in the
subject case (complaint) issued on March 2, 2005, by the Regional Director for Region 1 of the
National Labor Relations Board (Board). The underlying charge was filed on December 7,
2004,1 by Service Employees International Union, Local 2020, AFL-CIO, CLC (the Charging
Party or Union) alleging that Hillard Development Corporation, d/b/a Provident Nursing Home
(the Respondent or Employer), has engaged in certain violations of Section 8(a)(1) and (5) of
the National Labor Relations Act (the Act). The Respondent filed a timely answer to the
complaint denying that it had committed any violations of the Act.

Issue

The complaint alleges that the Respondent refused to execute, upon request of the
Union, a collective-bargaining agreement after the parties’ reached complete agreement on
terms and conditions of employment in violation of Section 8(a)(1) and (5) of the Act.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the brief filed by the General Counsel, I make the following
1 All dates are 2004 unless otherwise indicated.

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Findings of Fact

I. Jurisdiction

The Respondent is a corporation engaged in the business of operating a nursing home
at its facility in Boston, Massachusetts. Respondent, in conducting it business operation during
calendar year 2004, derived gross revenues in excess of $100,000 and purchased and received
at its facility goods valued in excess of $10,000 directly from points outside the Commonwealth
of Massachusetts. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(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.

II. Alleged Unfair Labor Practices

A. Background and Facts

On April 2, 1997, the Union was certified as the exclusive collective-bargaining
representative of the Unit. On June 5, 1997, the General Counsel of the Board issued a
Complaint and Notice of Hearing alleging that the Respondent has violated Section 8(a)(1) and
(5) of the Act by refusing the Union’s request to bargain and to furnish necessary and relevant
information. On July 7, 1997, the General Counsel filed a Motion for Summary Judgment with
the Board.

The Board, on August 20, 1997, issued a Decision and Order in Hillard Development
Corporation d/b/a Provident Nursing Home, 324 NLRB No. 46, finding in pertinent part that the
Respondent by refusing on and after May 14, 1997, to bargain with the Union as the exclusive
collective-bargaining representative of employees in the unit engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act. The Board ordered the Respondent to
bargain on request with the Union, and if an understanding is reached, to embody the
understanding in a signed agreement.

In 1998, the Respondent filed a Petition in Bankruptcy. While the Petition was pending,
the parties’ engaged in collective bargaining negotiations and an initial collective-bargaining
agreement was reached to be effective from January 1, 2001 through May 31, 2003. During the
course of these negotiations, Charlene Kaye, the Administrator of Respondent, served as its
chief negotiator.2

Since the parties were subject to the jurisdiction of the Bankruptcy Court when the
agreement was reached, the Union filed a motion with the court to approve the parties’
collective-bargaining agreement. By Order dated April 16, the Bankruptcy Court approved the
collective-bargaining agreement. See, In re: The Hillard Development Corporation, d/b/a
Provident Nursing Home, 2004 WL 1347049, 174 L.R.R.M 3364 (Bankr. S.D. FLA.). The Order
also stated that future bargaining between the parties is part of the ordinary course of business
and does not require approval of the Court.

By letter dated April 22, the Union demanded that the Respondent immediately
2 Kaye admitted, in the subject case, that she continues to be the Administrator of
Respondent and is a supervisor and agent within the meaning of section 2(11) and 2(13) of the
Act.

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commence bargaining on the terms and conditions of a successor agreement (GC Exh. 3). In
due course, the parties agreed to commence negotiations between July 6 and July 13. The
Union was represented during the negotiations by Organizing Director Mike Fadel while the
Respondent was represented by Kaye.3 After extensive negotiations during this period, an
agreement was consummated between the parties. Kaye stated on the record and confirmed in
writing to the Union on July 14, that the parties reached a final and binding collective-bargaining
agreement (GC Exh. 9). The agreement was reduced to writing and became effective from
August 1 to May 31, 2005 (GC Exh. 10).

As part of this agreement, the parties’ agreed to certain wage increases in Article 9 and
Appendix A, and changes to sick leave entitlements in Exhibit E that were to take effect on
August 1. Kaye admitted on the record that despite this agreement, the emoluments were not
implemented by the Respondent on August 1.

B. Discussion

The General Counsel asserts that the parties’ reached complete agreement on terms
and conditions of employment to be incorporated in a collective-bargaining agreement but since
on or about July 19, the Respondent has refused to execute the agreement.

Respondent denies that it entered into a successor collective-bargaining agreement with
the Union and further argues that only Wolfe has the authority to execute an agreement
assuming one was reached between the parties. Additionally, the Respondent opines that
jurisdiction to approve any successor collective-bargaining agreement is vested in the
Bankruptcy Court rather then the Board.

The Supreme Court held in H.J. Heinz Co. v NLRB, 311 U.S. 514, 525-526 (1941), that
an employer violates Section 8(a)(5) of the Act by refusing to execute a written contract
incorporating the terms of a collective-bargaining agreement reached with a union representing
its employees. The Board has held that the filing of a petition in bankruptcy normally does not
relieve or suspend a respondent’s obligation to execute on request the complete and final
agreement negotiated by the parties’. Indeed, it is well settled that the institution of bankruptcy
proceedings generally does not deprive the Board of jurisdiction or authority to entertain and
process an unfair labor practice case to final disposition. See, Image Systems, 285 NLRB 370
(1987).

Based on the forgoing, and particularly noting Kaye’s admission on the record that she
was fully vested with complete authority to negotiate over terms and conditions of employment
with the Union and reach a final and binding agreement, I find that the Respondent entered into
a collective-bargaining agreement on July 14 with the Union. Thus, I reject the Respondent’s
argument that in order to have a binding agreement, it had to be executed by Wolfe. Here, it is
apparent that Wolfe provided Kaye with full and complete authority to negotiate with the Union
and reach a final collective-bargaining agreement. Once this became effective on July 14, the
ministerial act of signing the agreement became moot.

Under these circumstances, the General Counsel’s position is sustained and I find that
3 Kaye admitted on the record that she was vested with full authority by Respondent’s owner
Richard Wolfe to negotiate over terms and conditions of employment with the Union and to
reach an agreement between the parties. Kaye, however, stated that she did not have the
authority to sign any agreement

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the Respondent by its acts and conduct described above, violated Section 8(a)(1) and (5) of the
Act.

Conclusions of Law

1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act when it reached complete
agreement on terms and conditions of employment of the Unit to be incorporated in a
collective-bargaining agreement but failed and refused to execute the agreement.

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
To remedy the above violation, I shall order the Respondent on request, to sign the
collective-bargaining agreement and give retroactive effect to the terms of the agreement to its
effective date of August 1, 2004.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4

ORDER

The Respondent, Hillard Development Corporation d/b/a Provident Nursing Home,
Boston, Massachusetts, its officers, agents, successors, and assigns, shall

1. Cease and desist from
(a) Refusing to bargain in good faith with Service Employees International Union,
Local 2020, AFL-CIO, CLC with respect to rates of pay, wages, hours, and other
terms and conditions of employment of its employees in the Unit by refusing to
execute the collective-barging agreement agreed to by the Respondent and the
Union on July 14, 2004.

(b) In any like or related manner restraining or coercing employees in the
exercise of rights guaranteed in Section 7 of the Act. .

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Execute, on request by the Union, the collective-bargaining agreement on
which agreement was reached on July 14, 2004.
(b) Give retroactive effect to August 1, 2004, to the terms and conditions of
employment of the collective-bargaining agreement.
(c) Within 14 days after service by the Region, post at its facility in Boston,
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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Massachusetts, copies of the attached notice marked “Appendix.”5 Copies of
the notice, on forms provided by the Regional Director for Region 1, 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 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
Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent
at any time since July 14, 2004.
(d) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. June 6, 2005

____________________
Bruce D. Rosenstein
Administrative Law Judge

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 National 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.”
JD–41–05
Boston, MA

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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT fail or refuse to bargain collectively with the Service Employees International
Union, Local 2020, AFL-CIO, CLC, with respect to rates of pay, wages, hours, and other terms
and conditions of employment of our employees in the appropriate Unit by refusing to execute
the agreed upon collective-bargaining agreement with the Union.

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, on request by the Union, execute the collective-bargaining agreement on which
agreement was reached between us and the Union.

WE WILL give retroactive effect to the terms and conditions of employment of the collective-
bargaining agreement to August 1, 2004.

WE WILL make whole our employees in the bargaining unit for any losses directly attributable to
our not paying them the contractually required wage increases and the sick leave buyout, with
interest, that are set forth in the agreed upon collective-bargaining agreement.

Hillard Development Corporation d/b/a Provident
Nursing Home
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s

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Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
10 Causeway Street, Boston Federal Building, 6th Floor, Room 601
Boston, Massachusetts 02222–1072
Hours of Operation: 8:30 a.m. to 5 p.m.
617-565-6700.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 617-565-6701.