Santa Cruz Skilled Nursing Center

National Labor Relations Board - Board Decisions

May 29, 2009

354 NLRB No. 25 (N.L.R.B. 2009)

354 NLRB No. 25
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Santa Cruz Skilled Nursing Center, Inc. and Service
Employees International Union, United Health-
care Workers-West. Cases 32–CA–23911, 32–
CA–23943, 32–CA–23944, 32–CA–24006, and
32–CA–24103
May 29, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the consolidated complaint. Upon charges
filed by the Union, Service Employees International Un-
ion, United Healthcare Workers-West on May 27, June
9, July 16, and September 15, 2008, respectively, the
General Counsel issued an order consolidating cases,
consolidated complaint, and notice of hearing on Febru-
ary 27, 2009, alleging that the Respondent, Santa Cruz
Skilled Care Nursing Center, Inc., has violated Section
8(a)(1) and (5) of the Act.1 The Respondent failed to file
an answer.
On April 3, 2009, the General Counsel filed a Motion
for Default Judgment with the Board. Thereafter, on
April 7, 2009, 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 April 21,
2009, the Union filed a response to the Order to Show
Cause. The Respondent filed no response. The allega-
tions in the motion are therefore undisputed.

1 As set forth in the General Counsel’s Motion for Default Judgment,
although the charge in Case 32–CA–23911 named the Respondent as
“Nazareth Healthcare,” the charge was properly served at the Respon-
dent’s address. Further, the Respondent’s counsel acknowledged by
letter dated July 18, 2008, that the charge had been filed against the
Respondent, and he responded to the allegations therein. The Region’s
investigation disclosed that the Respondent and Nazareth Healthcare
share some elements of common ownership. The charges in Cases 32–
CA–23943, 32–CA–23944, 32–CA–24006, and 32–CA–24103 named
the Respondent as Santa Cruz Skilled Nursing Center, Inc.
Ruling on Motion for Default Judgment2
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 March 13, 2009, all
of the allegations could be found to be true. Further, the
undisputed allegations in the General Counsel’s motion
disclose that the Region, by letter dated March 27, 2009,
notified the Respondent that, unless an answer was re-
ceived by March 30, 2009, a motion for default judgment
would be filed.
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, a California
corporation with an office and place of business in Santa
Cruz, California (the Facility), has been engaged in the
operation of a skilled nursing facility. During the 12-
month period preceding issuance of the consolidated
complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $100,000, purchased and received goods or
services valued in excess of $5000 which originated from
points outside the State of California, and received Fed-
eral Medicare funds in excess of $5000.
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 is a labor organization
within the meaning of Section 2(5) of the Act.

2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act. See New Process Steel v. NLRB, ___ F.3d ___
2009 WL 1162556 (7th Cir. May 1, 2009), petition for cert. filed __
U.S.L.W. __ (U.S. May 27, 2009) (No. 08–1457); Northeastern Land
Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No.
08–1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, ___ F.3d ___, 2009 WL 1162574 (D.C. Cir. May
1, 2009), petition for rehearing filed Nos. 08–1162, 08–1214 (May 27,
2009).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following named individuals
occupied the positions set forth opposite their respective
names, and are 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:
Helen Richardson Davis - Co-Owner
Mournir Kardosh - Co-Owner
Ralph Unterbrink - Administrator
Carol Frangieh - Director of Operations
Bernie Arevelo - Director of Staff Develop-
ment
Heidi Rodriguez - Director of Nursing
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 employees employed by the Respondent at the Fa-
cility performing work described in and covered by
“Section 1. Recognition” of the September 2, 2008
through September 1, 2010 collective bargaining
agreement between the Respondent and the Union (the
Agreement); excluding all other employees, registered
nurses, office employees, and supervisors as defined in
the Act.
Since about November 5, 2007, the Union has been the
designated exclusive collective-bargaining representative
of the employees in the unit, and since that date has been
recognized as such by the Respondent. Such recognition
has been embodied most recently in the Areement.
At all times since November 5, 2007, the Union, by
virtue of Section 9(a) of the Act, has been the exclusive
collective-bargaining representative of the employees in
the unit.
The Respondent, at the Facility:
(a) In February 2008, acting through Helen Richardson
Davis, during separate employee meetings:
(1) Interrogated employees concerning why they
wanted or supported the Union.
(2) Solicited grievances from employees and
promised to remedy these grievances in order to dis-
courage employees from supporting the Union.
(b) On various occasions during March 2008, acting
through Helen Richardson Davis, Carol Frangieh, Bernie
Arevelo, and/or Heidi Rodriguez, engaged in surveil-
lance of employees’ union activities.
(c) About May 6, 2008, acting through Carol Frangieh,
told a union representative that the representative could
not speak Spanish to employees at the Facility.
(d) In mid-May 2008, acting through Helen Richard-
son Davis, interrogated employees concerning their un-
ion activities and told them to stop trying to get other
employees to sign a prounion petition.
(e) In late May 2008, acting through Ralph Unterbrink,
told employees that the Respondent had assigned another
employee to observe employees’ union activities and to
report back to him on those activities.
(f) In late May 2008, acting through Helen Richardson
Davis, told employees that those employees who sup-
ported the Union were “backstabbers.”
(g) About May 28, 2008, acting through Helen
Richardson Davis, asked employees how the Respondent
could get employees not to support the Union, told em-
ployees that the Respondent would “fix” employees’
problems with expired green cards, and threatened em-
ployees with reprisals if they were seen participating in
informational picketing that the Union intended to con-
duct at the Facility.
(h) About May 29, 2008, acting through Ralph Unter-
brink, at an employee meeting, told employees that they
did not need the Union and that if they had problems, a
“free attorney” from the labor commissioner or some
other agency could help them.
(i) On various occasions during May 2008, acting
through Helen Richardson Davis, at employee meetings:
(1) Asked employees why they wanted the Un-
ion.
(2) Told employees that raises for them were
“frozen” until everything was finished with the Un-
ion, that it was because of the Union that employees
could not get raises, and that she had to let go of a
raise that she had intended to give employees be-
cause some of them wanted the Union.
(j) In May 2008, acting through Mournir Kardosh, at
an employee meeting, promised employees benefits in
order to discourage their support of the Union.
(k) In June 2008, acting through Helen Richardson
Davis, during separate employee meetings:
(1) Asked employees why they wanted the Un-
ion.
(2) Told employees that they did not need the
Union to get benefits because she would give them
those benefits without the Union.
(l) On or about June 30, 2008, acting through Mournir
Kardosh, at an employee meeting:
(1) Told employees that their support for the Un-
ion would be futile because, with or without the Un-
ion, the Respondent was not going to change their
benefits.
SANTA CRUZ SKILLED NURSING CENTER 3
(2) Impliedly threatened employees with loss of
employment by telling them that he did not want to
spend any more money fighting the Union, that he
was putting his own money into the Facility, and
that the Facility was going to close, and that if it was
not for him, the employees would not have a job.
(3) Promised employees benefits in order to dis-
courage their support of the Union by asking them to
give the Respondent “more time” and to wait be-
cause the Respondent would give them better bene-
fits.
(m) About June 30, 2008, acting through Helen
Richardson Davis, at an employee meeting, told employ-
ees that the Respondent had checked to see whether any
employees had participated in a previous union leafleting
activity.
About May 13, 2008, the Union, in writing, requested
that the Respondent provide it with, inter alia, a copy of
any policy stating that employees at the Facility could
only speak English at the Facility (the May 13 Informa-
tion).
About May 20, 2008, the Union, in a letter, requested
that the Respondent provide it with certain information
described in that letter relating to unit employees and
their terms and conditions of employment at the Facility
(the May 20 Information).
The May 13 Information and the May 20 Information
are necessary for and relevant to the Union’s perform-
ance of its duties as the exclusive collective-bargaining
representative of the employees in the unit.
Since about May 13, 2008, the Respondent has failed
and refused to provide, and/or timely provide, the Union
with the May 13 Information.
Since about May 20, 2008, the Respondent has failed
and refused to provide, and/or timely provide, the Union
with the May 20 Information.
On an unknown date in February 2008, the Respondent
implemented a new program under which unit employees
who successfully referred a certified nursing assistant for
employment with the Respondent would receive a $250
bonus (the Bonus Program).
The Bonus Program relates to the wages, rates of pay,
hours of employment, and other terms and conditions of
employment of the employees in the unit and is a manda-
tory subject for the purposes of collective bargaining.
The Respondent implemented the Bonus Program
without prior notice to the Union and without affording
the Union an opportunity to bargain with the Respondent
with respect to the Bonus Program and the effects of the
Bonus Program.
CONCLUSIONS OF LAW
1. By the conduct described above, the Respondent has
interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8(a)(1) of the Act.
2. By failing and refusing to provide, or timely pro-
vide, the Union with requested information that is neces-
sary for and relevant to the Union’s performance of its
duties as the exclusive collective-bargaining representa-
tive of the employees in the unit and by unilaterally im-
plementing a Bonus Program without notifying the Un-
ion or affording it an opportunity to bargain with respect
to the Bonus Program and the effects of the Bonus Pro-
gram, the Respondent has failed and refused to bargain
collectively and in good faith with the Union, in violation
of Section 8(a)(5) and (1).
3. 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)(5)
and (1) by implementing a Bonus Program without noti-
fying the Union and without affording it an opportunity
to bargain with respect to the Bonus Program and the
effects of the Bonus Program, we shall order the Re-
spondent, if requested by the Union, to rescind the uni-
laterally-implemented Bonus Program, and to bargain, on
request, with the Union over the Bonus Program and its
effects. Further, having found that the Respondent has
failed and refused to provide, and/or to timely provide
the Union with information that is necessary for and
relevant to its role as the exclusive collective-bargaining
representative of the employees in the unit, we shall or-
der the Respondent to provide the Union with the infor-
mation it requested on May 13 and 20, 2008, in a timely
manner.
ORDER
The National Labor Relations Board orders that the
Respondent, Santa Cruz Skilled Nursing Center, Inc.,
Santa Cruz, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their union
sympathies and activities and concerning why they want
or support the Union.
(b) Telling a union representative that the representa-
tive could not speak Spanish to employees at the Facility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
(c) Telling its employees to stop trying to get other
employees to sign a prounion petition.
(d) Telling its employees that employees who support
the Union are “backstabbers.”
(e) Soliciting grievances from its employees and prom-
ising to remedy those grievances in order to discourage
employees from supporting the Union.
(f) Engaging in surveillance of its employees’ union
activities and creating the impression that its employees’
union activities are under surveillance.
(g) Threatening and impliedly threatening its employ-
ees with discharge, plant closure, denial of raises, and
other reprisals if the employees selected the Union as
their exclusive collective-bargaining representative, or if
they participated in other protected concerted activities.
(h) Promising employees benefits in order to discour-
age its employees’ support of the Union.
(i) Telling its employees that their support for the Un-
ion would be futile.
(j) Failing and refusing to provide, and/or timely pro-
vide, the Union with information that is necessary for
and relevant to its performance of its duties as the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:
All employees employed by the Respondent at the Fa-
cility performing work described in and covered by
“Section 1. Recognition” of the September 2, 2008
through September 1, 2010 collective bargaining
agreement between the Respondent and the Union
(herein called the Agreement); excluding all other em-
ployees, registered nurses, office employees, and su-
pervisors as defined in the Act.
(k) Unilaterally implementing a bonus program with-
out notifying the Union and without affording it an op-
portunity to bargain with respect to the Bonus Program
and the effects of the Bonus Program.
(l) 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) In a timely manner, provide the Union with the in-
formation it requested on May 13 and 20, 2008, which is
necessary for and relevant to its performance of its duties
as the exclusive collective-bargaining representative of
the employees in the unit.
(b) If requested by the Union, rescind the Bonus Pro-
gram that was unlawfully implemented without notifying
the Union or offering it the opportunity to bargain about
the Bonus Program or its effects on the unit; provided,
however, that nothing in this Order shall be construed as
requiring the Respondent to rescind the Bonus Program
unless the Union requests such action.
(c) On request, bargain with the Union concerning the
Bonus Program and its effects.
(d) Within 14 days after service by the Region, post at
its facility in Santa Cruz, California, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
32, 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
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 February
2008.
(e) 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.
Dated, Washington, D.C. May 29, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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

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.”
SANTA CRUZ SKILLED NURSING CENTER 5
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 interrogate our employees concerning
their union sympathies and activities and concerning why
they want or support the Union.
WE WILL NOT tell a union representative that the repre-
sentative could not speak Spanish to employees at the
Facility.
WE WILL NOT tell our employees to stop trying to get
other employees to sign a prounion petition.
WE WILL NOT tell our employees that employees who
support the Union are “backstabbers.”
WE WILL NOT solicit grievances from our employees
and WE WILL NOT promise to remedy those grievances in
order to discourage employees from supporting the Un-
ion.
WE WILL NOT engage in surveillance of our employ-
ees’ union activities and WE WILL NOT create the impres-
sion that our employees’ union activities are under sur-
veillance.
WE WILL NOT threaten or impliedly threaten our em-
ployees with discharge, plant closure, denial of raises,
and other reprisals if the employees select the Union as
their exclusive collective-bargaining representative, or if
they participate in other protected concerted activities.
WE WILL NOT promise employees benefits in order to
discourage employees’ support of the Union.
WE WILL NOT tell employees that their support for the
Union would be futile.
WE WILL NOT fail and refuse to provide, and/or timely
provide, the Union with information that is necessary for
and relevant to its performance of its duties as the exclu-
sive collective-bargaining representative of the employ-
ees in the following unit:
All employees employed by us at the Facility perform-
ing work described in and covered by “Section 1. Rec-
ognition” of the September 2, 2008 through September
1, 2010 collective bargaining agreement between us
and the Union (the Agreement); excluding all other
employees, registered nurses, office employees, and
supervisors as defined in the Act.
WE WILL NOT unilaterally implement a Bonus Program
without notifying the Union and without affording it an
opportunity to bargain with respect to the Bonus Program
and the effects of the Bonus Program.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights described above.
WE WILL, in a timely manner, provide the Union with
the information it requested on May 13 and 20, 2008,
which is necessary for, and relevant to, its performance
of its duties as the exclusive collective-bargaining repre-
sentative of the employees in the unit.
WE WILL, if requested by the Union, rescind the unilat-
erally implemented Bonus Program.
WE WILL, on request, bargain with the Union concern-
ing the Bonus Program and its effects.
SANTA CRUZ SKILLED NURSING CENTER, INC.