San Francisco Health Care dba Grove Street Extended Care Center

National Labor Relations Board - Board Decisions

Dec 16, 2011

20-CA-035415 (N.L.R.B. Dec. 16, 2011)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO HEALTHCARE
AND REHAB, INC.
and Cases 20-CA-35415
20-CA-35418
SEIU UNITED HEALTHCARE
WORKERS - WEST
DECISION AND ORDER
Statement of the Cases
On December 2, 2011, San Francisco Healthcare and Rehab, Inc. (the
Respondent), SEIU United Healthcare Workers – West (the Union), and the Acting
General Counsel of the National Labor Relations Board entered into a Formal
Settlement Stipulation, subject to the Board’s approval, providing for the entry of a
consent order by the Board and a consent judgment by any appropriate United States
Court of Appeals.1 The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations Act, as
amended, and the Board’s Rules and Regulations, and the Respondent waived its right
to contest the entry of a consent judgment or to receive further notice of the application
therefor.
The Formal Settlement Stipulation is approved and made a part of the record,
and the proceeding is transferred to and continued before the Board in Washington,
D.C., for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following:
FINDINGS OF FACT
1. The Employer’s business
From on or about October 11, 2010, and forward, the Respondent, a California
corporation, has been engaged in providing healthcare, including long-term custodial
care and rehabilitation services, at its 1477 Grove Street, San Francisco, California
location.

1 By order dated December 6, 2011, Administrative Law Judge Gerald M.
Etchingham approved this Formal Settlement Stipulation.
2
Based on a projection of its operations since February 11, 2011, the Respondent,
during the calendar year ending December 31, 2011, in conducting its operations
described above, will derive gross revenues in excess of $100,000, and will purchase
and receive goods valued in excess of $5,000 which originate from points outside the
State of California.
Since October 11, 2010, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a
health care institution within the meaning of Section 2(14) of the Act.
2. The labor organization involved
At all material times, SEIU United Healthcare Workers – West, the Union, has
been an organization in which employees participate, and which exists, in whole or in
part, for the purpose of representing employees in dealings with persons and employers
regarding labor disputes and bargaining collectively with respect to employee wages,
hours and working conditions.
At all material times, the Union has been a labor organization within the meaning
of Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board orders that:
The Respondent, San Francisco Healthcare and Rehab, Inc., San Francisco,
California, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Union in the following appropriate
unit (the Unit):
All non-supervisory licensed vocational nurses, nurses aides, certified nurses
aides, physical therapy aides, activity aides, restorative aides, housekeepers,
laundry aides, kitchen aides, central supply aides, maintenance aides, cooks and
home health care workers employed at the Employer’s facility located at 1477
Grove Street, San Francisco, California; excluding Administrator, Department
Heads, RNs, supervisory licensed nurses, office clerical employees, and guards
and supervisors as defined in the Act.
(b) Making changes to terms and conditions of employment of Unit employees
without first notifying the Union and affording it in good faith an opportunity to bargain
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over them, including, but not limited to, terminating Unit employees, subcontracting Unit
work, implementing a new employee handbook and employer rules, and converting
employees to independent contractor status.
(c) Engaging in conduct, including refusing to hire or consider hiring employees
for employment, intended to avoid its obligation to recognize and bargain with the
Union.
(d) In any like or related manner interfering with, restraining or coercing
employees in the exercise of their Section 7 rights.
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Upon the Union’s request, recognize and bargain with the Union as the
exclusive collective-bargaining representative of the employees in the Unit with respect
to rates of pay, wages, hours of employment, and other conditions of employment, and,
if an understanding is reached, reduce it to writing and sign it.
(b) Rescind, at the Union’s request, the employee handbook and new employer
rules implemented on February 11, 2011, and offer reinstatement to any employees
who were terminated pursuant to the unilaterally implemented handbook and rules, to
their former job positions or, if their positions no longer exist, to substantially equivalent
positions, without prejudice to their rights and privileges, displacing, if necessary, any
newly hired or reassigned employees.
(c) Within 14 days from the date of the Board’s Order, offer to Maria Olmedo full
reinstatement to her former job position, or to a substantially equivalent position, without
prejudice to her seniority rights and privileges previously enjoyed, displacing, if
necessary, any newly hired or reassigned workers.
(d) Within 14 days from the date of the Board’s Order, offer the housekeeping
employees employed in the classifications of hospitality aides, turners and/or sitters,
including Ester San Jose, Jeanny Ulanday, Xue Ying Zhang, Kim Mary Endriga, Angel
Cantanjay, and Carmen Perez, who were terminated in November or December 2010,
reinstatement to their former job positions, or to substantially equivalent positions,
without prejudice to their seniority rights and privileges previously enjoyed, displacing, if
necessary, any newly hired or reassigned workers.
(e) Within 7 days of the Board’s Order, perform the actions required to instigate
cancellation of the subcontracts covering the classifications of housekeeper, laundry
aides, kitchen aides, and cooks that became effective on February 11, 2011, and, within
the contractually-allotted time, rescind the subcontracts, provided however, that
inasmuch as the Respondent would seek to supplement its housekeeper, laundry aides,
kitchen aides, and cooks workforce in anticipation of a State survey to be performed by
January 2012, termination of the contracts need not take effect until February 1, 2012.
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(f) Within 14 days of the Board’s Order, offer to employees who were terminated
on about February 10, 2011, as a result of the subcontracts that became effective on
February 11, 2011, reinstatement to their former job positions or to substantially
equivalent positions without prejudice to their rights and privileges, displacing, if
necessary, any newly hired or reassigned workers, provided however, if the
Respondent establishes that there is insufficient work to accommodate immediate
employment of any of these alleged discriminatees at its facility, the Respondent shall
place their names on a preferential hiring list from which the Respondent will, in a
nondiscriminatory manner, exclusively fill all future Unit job vacancies that may arise,
and provided that the term “insufficient work,” as used in this subparagraph, is not to
include impacts associated with the Respondent’s decision to supplement its
housekeeper, laundry aides, kitchen aides, and cooks workforce through February 1,
2012. Said employees include, but are not limited to: Bi Lian Deng, Dennis Echon,
Ricardo Echon, Rodolfo Jereza, Guang Liang Liu, Pia Logarta, Gui Qing Lu, Kevin
Phung, May Tan, Maria E. Vega, Maria R. Vega, Macario Abrajano, Angeles Catanyag,
Yu Lan Chen, Franklin Emilia, Eduardo C. Fernandez, Linda Fontelar, Anthony F.
Francisco, Cristy Guillermo, David Guillermo, Mei Lian Huang, Chuen Yuep Jone,
William Laban, Lourdes Mercedes, John Nevado, Myrlina Nombrado, Carmen Perez de
Martir, Herminio B. Santos, Ying-Si Zhong, and Tianqin Yang.
(g) Within 14 days of the Board’s Order, offer to employees whom it unilaterally
terminated on February 10, 2011, and whom it did not rehire on February 11, 2011,
reinstatement to their former job positions, or if those positions no longer exist, to
substantially equivalent positions without prejudice to their rights and privileges,
displacing, if necessary, any newly hired or reassigned workers, provided however, if
the Respondent establishes that there is insufficient work to accommodate immediate
employment of any of these alleged discriminatees at its facility, the Respondent shall
place their names on a preferential hiring list from which the Respondent will, in a
nondiscriminatory manner, exclusively fill all future Unit job vacancies that may arise.
Said employees include, but are not limited to: Menelito Abuan, Roma Balberan,
Virginia Bautista, Ingrid Castrillo, Fedrico Castro, Boniface Emelife, Amanda Garcia,
Antonio Gonzales, Elizabeth Hornsby, Shirley Igtanloc, Pearl Eke, Brigitte Kouamo,
Julia Lopez, Fe Lorenza Macaspac, Adela Montes, Marjorie Nored, Lee Tabb, Elizabeth
Kambey, Nelly Robles, Tsewang Tsomo, Jennifer Washington, Gracelda Castro
Zastros, Camille Ann S. Mallari, Su Chen, Walter Gutierrez, Shi Ji Liang, Guo-Tang
Sun, Violeta Ancheta, Marina Colmenarez, Piarosario Custodio, Laura Delos Reyes,
Sonam Diki, Jonalyn Dizon, Tsamchoe Dolma, Chinwe Egu, Allan Frias, Yizhi Huang,
Shirley Lopez, Teresita Macato, Adelina Marshall, Marilyn Rillorta, Bennet Torio,
Marilene Villanueva, Robertalee Viray, and Victoria Guerra.
(h) Within 14 days of the Board’s Order, offer to the individuals whom it
unilaterally terminated as employees on February 10, 2011, and unilaterally converted
to independent contractors as of about February 11, 2011, reinstatement to their former
positions, or if those positions no longer exist, to substantially equivalent positions
without prejudice to their rights and privileges, displacing, if necessary, any newly hired
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or reassigned workers. Said employees include, but are not limited to: Tessie Abuan,
Aniette Castro, Grace Divina Dado, Eddie Durante, Elizabeth Eatmon, Beatrice Eke,
Anthony Francisco, Emily Hanna, Maria M. Incer, Claudia Rodriguez, Yerusalem
Teweldemedhin, and Yasmine Yunzal.
(i) Make whole, with interest, the employees named or referred to above in
subparagraphs 2(b) through (d) and 2(f) through (h) for all losses suffered as a result of
their unlawful terminations of employment. Should the Respondent utilize a preferential
rehire list, as described in the subparagraphs above, it is understood that backpay will
continue to accrue for said placed employees until such time as they are reinstated or
decline a valid offer of reinstatement. Lost wages and other benefits will be calculated
pursuant to the Board’s standard practices and procedures, including interest
compounded on a daily basis, the reimbursement by the Respondent to employees of
amounts equal to the difference in taxes owed upon receipt of a lump-sum payment and
taxes that would have been owed had there been no unfair labor practices, and the
requirement that the Respondent submit the appropriate documentation to the Social
Security Administration so that when backpay is paid, it will be allocated to the
appropriate periods. Absent agreement of the parties with respect to all monetary
remedies, a Compliance Specification may issue and, if necessary, a hearing on said
Specification will be conducted in accordance with the Board’s usual procedures for
determining monetary remedies. Should the Respondent choose voluntarily to comply
with the make-whole remedy determined via the Board’s standard practices and
procedures, which calculations will be presented to the Respondent in advance of the
final determination and agreement and subject to mutual review and agreement of the
parties hereto, short of the issuance of a Formal Compliance Specification, the
Respondent will be responsible for payment of 80% of the make-whole remedy. Should
the issuance of a Formal Compliance Specification be required, the Respondent will be
responsible for payment of 90% of the make-whole remedy determined after
proceedings upon such Compliance Specification.
(j) Within 14 days of the Board’s Order, for those employees not reinstated or
who otherwise do not accept employment pursuant to this Stipulation and Order, pay to
all employees unilaterally terminated on February 10, 2011, and to the employees
named above in subparagraph 2(c), the amount of accrued vacation time, also known
as PTO, with interest, owing to them pursuant to the terms and conditions of the
collective-bargaining agreement last in effect at the Grove Street facility. For those
employees who accept reinstatement pursuant to this Stipulation and Order, restore the
amount of vacation time accrued as of February 10, 2011, pursuant to the terms and
conditions of the collective-bargaining agreement last in effect at the Grove Street
facility.
(k) Within 14 days of the Board’s Order and upon request of the Union, rescind
any or all changes to terms and conditions of employment implemented after October
10, 2010 for bargaining Unit employees, including any newly hired employees,
including, but not limited to, those relating to wage rates, scheduling and hours, health
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and dental benefits, disciplinary procedures, at-will employment, attendance and
punctuality, holidays, and vacations.
(l) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the amount of
make-whole amounts due under the terms of this Order.
(m) Within 14 days of service by the Region, post at its Grove Street facility in
San Francisco, California, copies of the attached notice marked “Appendix A.” Copies
of the notice, on forms provided by Region 20, after being signed by the Respondent’s
authorized representative, shall be posted for a period of sixty (60) days, in English,
Spanish, Tagalog, and Chinese, in conspicuous places, including all places where
notices to its employees are normally posted. The Respondent will take reasonable
steps 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 November 15, 2010.
(n) Within twenty (20) days of the issuance of the Board’s Order, file with the
Regional Director of Region 20 of the Board, a sworn affidavit from a responsible official
describing with specificity the manner in which the Respondent has complied with the
terms of the Board’s Order, including the locations of the posted documents.
Dated, Washington, D.C., December 16, 2011.
___________________________________
Mark Gaston Pearce, Chairman
___________________________________
Craig Becker, Member
___________________________________
Brian E. Hayes, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER AND A
CONSENT JUDGMENT OF ANY APPROPRIATE UNITED STATES COURT OF
APPEALS
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative 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 do anything to prevent you from exercising the above rights.
The Service Employees International Union United Healthcare Workers – West is the
employees’ representative in dealing with us regarding wages, hours and other
working conditions of the employees in the following Unit:
All non-supervisory licensed vocational nurses, nurses aides, certified nurses
aides, physical therapy aides, activity aides, restorative aides, housekeepers,
laundry aides, kitchen aides, central supply aides, maintenance aides, cooks and
home health care workers employed at the Employer’s facility located at 1477
Grove Street, San Francisco, California; excluding Administrator, Department
Heads, RNs, supervisory licensed nurses, office clerical employees, and guards
and supervisors as defined in the Act.
WE WILL NOT fail or refuse to recognize and bargain in good faith with the Union as
the exclusive collective-bargaining representative of our Unit employees.
WE WILL NOT make changes to terms and conditions of your employment without first
notifying and bargaining with the Union. This includes, but is not limited to, terminating
all Unit employees, subcontracting Unit work, converting employees to independent
contractor status, and implementing a new employee handbook and employer rules.
WE WILL NOT terminate employees, refuse to hire or consider job applicants;
subcontract employees’ work; or convert employees into independent contractors with
the intent to avoid our obligation to recognize and bargain with the Union.
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WE WILL NOT in any like or related manner, interfere with your rights under Section 7
of the Act.
WE WILL, on request, recognize and bargain in good faith with the Union as your
exclusive bargaining representative about your wages, hours of employment, and other
conditions of employment, and, if an understanding is reached, reduce it to writing and
sign it.
WE WILL, if requested by the Union, rescind the employee handbook and new
employer rules implemented on February 11, 2011, and WE WILL offer reinstatement to
employees who were terminated pursuant to the unilaterally implemented handbook
and rules to their former job positions or, if their positions no longer exist, to
substantially equivalent positions, without prejudice to their rights and privileges,
displacing, if necessary, any newly hired or reassigned employees.
WE WILL, if requested by the Union, rescind any or all changes to Unit employees’
terms and conditions of employment implemented after October 10, 2010, including any
newly hired employees.
WE WILL offer all housekeeping employees employed in the classifications of
hospitality aides, turners and/or sitters who were terminated in November or December
2010 their former jobs, or if their positions no longer exist, to substantially equivalent
positions without prejudice to their seniority and all other rights or privileges.
WE WILL rescind the subcontracts covering the classifications of housekeeper, laundry
aides, kitchen aides, and cooks that became effective on February 11, 2011, and WE
WILL offer all Unit employees who were terminated on about February 10, 2011, as a
result of the subcontracts that became effective on February 11, 2011, their former jobs,
or to substantially equivalent positions without prejudice to their seniority and all other
rights or privileges, but provided that if there is insufficient work for the immediate
reinstatement of said employees, the employees’ names will be placed on a preferential
hiring list.
WE WILL offer all Unit employees terminated on February 10, 2011, and who were not
rehired on February 11, 2011, their former jobs, or if their positions no longer exist, to
substantially equivalent positions without prejudice to their seniority and all other rights
or privileges, but provided that if there is insufficient work for the immediate
reinstatement of said employees, the employees’ names will be placed on a preferential
hiring list.
WE WILL offer all Unit employees terminated on February 10, 2011, and unilaterally
converted to independent contractors as of about February 11, 2011, their former jobs,
or if their positions no longer exist, to substantially equivalent positions without prejudice
to their seniority and all other rights or privileges.
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WE WILL make whole, with interest, all Unit employees eligible for reinstatement as
described above, and WE WILL make Unit employees whole, with interest, for wages
and other benefits lost because of the changes to terms and conditions of employment
that we made without bargaining with the Union.
WE WILL remove from our files all references to the discharge of all employees eligible
for reinstatement as described above, and WE WILL notify them in writing that this has
been done and that the discharges will not be used against them in any way.
WE WILL remove from our files all references to the failure to hire any employees
terminated on February 10, 2011, and who were considered for rehire, and WE WILL
notify them in writing that this has been done and that the failure to hire them will not be
used against them in any way.
WE WILL, for those employees who accept reinstatement to their jobs, restore the
amount of vacation time (also known as “PTO”) accrued as of February 10, 2011, under
the terms of the collective-bargaining agreement last in effect at the Grove Street
facility, and WE WILL, for those employees who do not accept reinstatement to their
jobs, pay out the amount of accrued vacation time owed to them as of February 10,
2011, pursuant to the expired collective-bargaining agreement.
SAN FRANCISCO HEALTHCARE AND REHAB, INC.
(Employer)