Sterling Nursing Home

National Labor Relations Board - Board Decisions

Feb 22, 1995

316 N.L.R.B. 413 (N.L.R.B. 1995)

413
316 NLRB No. 82
STERLING NURSING HOME
1 The Respondents except only to the judge’s finding that the
complaint was not time-barred by Sec. 10(b) of the Act, and that the
Regional Director for Region 4 could reinstate the previously with-
drawn unfair labor practice charges.
Member Cohen notes that the Respondents have not raised any de-
fense based on Greenhoot, Inc., 205 NLRB 250 (1973).
2 In his remedy, the judge provided that ‘‘Wages owed shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950).’’ Because the amounts due to the employees result from the
Respondents’ failure to apply the collective-bargaining agreements,
and not from a termination of employment status, backpay should
be calculated pursuant to Ogle Protection Service, 183 NLRB 682
(1970), rather than F. W. Woolworth, supra. The judge’s remedy is
modified accordingly.
Jonko, Inc. d/b/a Sterling Nursing Home, LTC Con-
sulting and Weber Management, Inc. and
Local 815–S a/w Production Service and Sales
District Council, H.E.R.E., AFL–CIO, CLC
Extended Care Facilities, Inc. d/b/a Rosewood
Manor Nursing Center, LTC Consulting and
Weber Management, Inc. and Local 815–S a/w
Production Service and Sales District Council,
H.E.R.E., AFL–CIO, CLC. Cases 4–CA–19824,
4–CA–19826, 4–CA–20897, and 4–CA–20898
February 22, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On April 19, 1994, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Jonko, Inc. d/b/a Sterling
Nursing Home, Extended Care Facilities, Inc. d/b/a
Rosewood Manor Nursing Center, LTC Consulting,
and Weber Management, Inc., Philadelphia, Pennsyl-
vania, their officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Barbara A. O’Neill, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollard), of South Orange,
New Jersey, for the Respondent.
Bryce J. Cooper, Esq. (Dublirer, Haydon, Straci & Victor,
PC), of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge. This
consolidated case was tried in Philadelphia, Pennsylvania, on
February 22, 1994. The consolidated complaint, as amended
at the hearing, alleges that Respondent (all respondents will
be referred to in the singular unless otherwise indicated) vio-
lated Section 8(a)(5) and (1) of the Act by refusing to pro-
vide necessary information to the Charging Party Union (the
Union) that represents its employees in separate units at the
Sterling Nursing Home and at the Rosewood Manor Nursing
Center. It also alleges that Respondent violated Section
8(a)(5) and (1) and Section 8(d) of the Act by repudiating
collective-bargaining agreements with the Union at those fa-
cilities by failing to abide by certain specified terms in those
agreements from December 7, 1990, until their expiration in
March 1993. The Respondent has filed answers denying the
essential allegations in the consolidated complaint. After the
conclusion of the hearing, the parties filed briefs which I
have read and considered.
Based on the entire record, including the testimony of the
witnesses and my observation of their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTIONAL AND BACKGROUND MATTERS
It is admitted that Jonko, Inc. d/b/a Sterling Manor Nurs-
ing Home (Sterling) is a corporation engaged in operating a
nursing home at 794 North Fork Landing Road, Maple
Shade, New Jersey, and that Extended Care Facilities, Inc.
d/b/a Rosewood Manor Nursing Center (Rosewood) is a cor-
poration engaged in operating a nursing home located at
Route 38 and Mill Road, Maple Shade, New Jersey. The par-
ties have stipulated that, at all material times, Michael Konig
has been president of Sterling and owns 51 percent of its
stock, the remainder of which is owned by a relative of his,
Jonathan Konig. The parties have also stipulated that, at all
material times, Michael Konig has been president and sole
shareholder of Rosewood. The stipulation continues as fol-
lows: At all material times, Michael Konig has been presi-
dent and sole owner of LTC Consulting (LTC) which has a
principal place of business at 1104 Teaneck Road, Teaneck,
New Jersey. LTC is basically a management shell over all
of the nursing homes owned by Michael Konig, including
Sterling and Rosewood. LTC provides services to each of the
nursing homes owned by Konig, including maintaining and
generating payroll records. The parties further stipulated that
Rosewood and LTC are single employers within the meaning
of the Act, as are Sterling and LTC.
The parties have also entered into this stipulation: Weber
Management Inc., also d/b/a SSI (Weber or SSI), has a prin-
cipal place of business at 461 Bedford Avenue, Brooklyn,
New York. At all material times, Weber had contracts with
both Sterling and Rosewood to provide employees to them.
Copies of these contracts are in evidence.
In its July 9, 1993 answer, Respondent admitted that, in
a representative 1-year period, Rosewood and Sterling re-
ceived gross revenues in excess of $100,000 and purchased
and received materials and supplies valued in excess of
$5000 from outside the State of New Jersey. Respondent also
414 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Sterling agreement ran from March 17, 1990, through March
16, 1993; the Rosewood agreement ran from March 9, 1990, through
March 8, 1993. Upon the expiration of those agreements the parties
entered into new agreements which are not the subject of this case.
admitted that, during a similar period, Weber performed
services valued in excess of $50,000 in States other than
New York. Accordingly, I find, as Respondent also admits,
that Rosewood, Sterling, and Weber are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and that Rosewood and Sterling are health care
institutions within the meaning of Section 2(14) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. PROCEDURAL HISTORY OF THE CASE
The original consolidated complaint—Cases 4–CA–19824
and 4–CA–19826—issued on August 31, 1991, based on
charges filed on June 3, 1991. It alleged that two respond-
ents, Rosewood and Sterling, violated Section 8(a)(5) and (1)
of the Act by failing and refusing to provide information to
the Union and by repudiating their collective-bargaining
agreements with the Union by failing to abide by certain
contractual requirements. The latter violations were alleged
to have occurred from on or about December 3, 1990. An
answer was filed to this complaint on September 25, 1991.
Thereafter, on January 30, 1992, because of an apparent
private settlement, the Regional Director for Region 4 condi-
tionally approved withdrawal by the Union of the charges
that spawned the above-consolidated complaint. His letter, to
all the parties, stated as follows:
This is to advise you that I have conditionally ap-
proved the withdrawal requests which the Charging
Party has submitted in the above-referenced cases based
upon a representation that a private settlement has been
reached between the parties. This action is conditioned
upon the performance of the undertakings in the private
settlement between the parties. Upon application by the
Charging Party, supported by evidence that those under-
takings have not been complied with, the charges are
subject to reinstatement for further processing. In these
circumstances, the Consolidated Complaint previously
issued in these matters is hereby dismissed and the No-
tice of Hearing is withdrawn.
In July 1992, the Union filed additional charges in Cases
4–CA–20897 and 4–CA–20898 alleging that other parties
were affiliated with the original respondents as single or joint
employers and that all participated in further and additional
violations of the Act by repudiating and failing to abide by
the same agreements involved in the original complaint. The
Regional Director investigated the new charges and issued
investigative subpoenas that were complied with only after
institution of court enforcement proceedings.
On May 28, 1993, the General Counsel, through the Re-
gional Director, issued a new consolidated complaint in
Cases 4–CA–20897 and 4–CA–20898 against the original
and new respondents with basically the same repudiation and
failure to abide allegations involving the same agreements as
set forth in the original complaint. In this complaint, how-
ever, violations were alleged from on or about January 13,
1992. In due course an answer to this complaint was filed.
Also on May 28, 1993, the Regional Director revoked his
conditional approval of the withdrawal request in the original
complaint. The Regional Director did so because, as he stat-
ed, he was presented evidence by the Charging Party show-
ing that Respondent had ‘‘failed to fulfill the terms of the
private settlement’’ that led to the conditional approval of the
withdrawal request. He therefore resuscitated the original
complaint.
Subsequently, in June 1993, amended charges were filed
in the original case and, on July 2, 1993, a new complaint
in Cases 4–CA–19824 and 4–CA–19826 issued that included
the same additional respondents as were alleged in the May
28, 1993 complaint. This complaint reflected the amended
charges, and the initial date of contract violations was
changed to December 7, 1990. This complaint was also con-
solidated with the May 28, 1993 complaint and another an-
swer addressed to this complaint was filed on July 9, 1993.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union has represented employees at Sterling and
Rosewood for over 10 years; the relationship of the parties
has been embodied in successive collective-bargaining agree-
ments. Michael Konig purchased the nursing homes in late
1987 or early 1988. Under his ownership, the Union contin-
ued to represent the employees in both homes and the rela-
tionship continued to be defined in separate collective-bar-
gaining agreements, the latest of which material here, ran
from March 1990, through 1993.1
In each separate unit, the Sterling unit and the Rosewood
unit, the Union represents all full-time and part-time employ-
ees excluding registered nurses, licensed practical nurses, of-
fice clerical, professional employees, and guards and super-
visors as defined in the Act. The agreements include a num-
ber of provisions, including union security and dues check-
off, health insurance, wages, life insurance, prescription and
eyeglass benefits, reduction in benefits, pension, holidays,
vacation and sick leave with pay, that were allegedly not ap-
plied to certain employees.
The agreements also contain clauses that exclude from
coverage so-called ‘‘temporary or per diem workers’’ whom
the Respondent is permitted to hire. A temporary or per diem
employee is ‘‘one who has been hired for a stated or limited
period of time usually not to exceed ninety (90) days.’’
Historically, Respondent—and its predecessors—utilized
temporary workers under the applicable collective-bargaining
agreements. At some point, however, Respondent also began
utilizing, on a more permanent basis, SSI or Weber employ-
ees to perform unit work alongside existing unit employees.
To the extent that these Weber workers were more than tem-
porary workers—and it was not always easy to distinguish,
at least from the Union’s perspective, they were, of course,
covered under the bargaining agreements.
The first contracts between Respondent and Weber for the
SSI or Weber employees are dated January 1, 1990. Weber
agreed to provide employees to both nursing homes for a per
hour fee for each employee provided. Weber was to
‘‘[a]dvise and monitor the facilities where appropriate on
Union/Management activities and provide consultation to
management accordingly’’ and ‘‘assist the facilities in policy
415STERLING NURSING HOME
2 Although Respondent apparently disputes this finding and there
was no written settlement agreement, it is clear, from the
uncontradicted testimony of Faucella and Lovell and the context of
the Union’s withdrawal request and the Regional Director’s condi-
tional approval of it, that there was a verbal agreement to cover the
Weber employees. Respondent’s suggestion that the parties had no
such private agreement is not only contrary to the thrust of
Faucella’s testimony but implausible. Faucella’s testimony about
Konig’s agreement to abide by the collective-bargaining agreements
withstood cross-examination, despite counsel for Respondent’s at-
tempt to get him to say there was no such agreement. My view of
Faucella’s testimony was that he meant to say there was no written
settlement agreement, which was true, not that there was no oral
agreement to abide by the collective-bargaining agreements. Faucella
repeatedly testified that Konig did orally agree to abide by the col-
lective-bargaining agreements at the time the Union requested with-
drawal of the original charges. This is the only plausible explanation
for the requested withdrawal and the Regional Director’s conditional
approval of the request.
development, i.e. . . . discipline and grievance procedures.’’
There is no record evidence that the Union was notified by
Respondent of the existence of such contracts.
The Weber employees were hired by Respondent at each
of the facilities. They performed the same work as non-
Weber unit employees at Rosewood and Sterling and they
were supervised by the same people. However, the Weber
employees received no contractual benefits such as vacations,
sick leave, holidays, health or life insurance, or pension cov-
erage. They may have received slightly more in wages than
the regular employees, although they did not receive the con-
tractually mandated wage increases that other employees re-
ceived. The Weber employees were not given an opportunity
to join the Union, as provided in the bargaining agreements.
One employee testified that when she was hired in 1990 she
was not told of the existence of the Union or of a union-
security and dues-checkoff clause in the bargaining agree-
ments, or even of the existence of contract benefits. Other
employees signed membership and dues-checkoff authoriza-
tions in March 1991, which were ignored by Respondent.
Some employees waited for 6 months or more after their au-
thorizations were submitted before their dues were deducted.
The above evidence of noncompliance with the bargaining
agreements is supported by Respondent’s own records and
the uncontradicted testimony of employees.
Based on the above evidence, I find that the Weber em-
ployees were unit employees of Respondent who were enti-
tled to full coverage under the applicable collective-bargain-
ing agreements. I also find that Respondent failed to apply
those agreements, particularly the 1990 to 1993 bargaining
agreements, to the Weber employees.
Shortly after Konig took over the nursing homes, Union
Business Representative Joseph Lovell heard ‘‘rumblings’’
about employees working at the facilities without belonging
to the Union or being paid contractual benefits. During the
next few years, including during negotiations leading to the
1990–1993 bargaining agreements and during the term of
those agreements, Lovell and Union President Peter Faucella
had many meetings with Michael Konig and other represent-
atives of Respondent. Some of those meetings were canceled
by Konig, but, at those he attended, Konig repeatedly told
the union agents that he would ‘‘take care of’’ or ‘‘straighten
out’’ the problem of coverage of the Weber employees under
the bargaining agreements.
In March and April 1991, the Union wrote letters to Rose-
wood and Sterling notifying Respondent of employees who
had signed union and dues authorization cards and asking
that their dues be processed and that they be covered under
the applicable agreements. Because Lovell had reason to be-
lieve that employees were ‘‘working outside the unit,’’ he
also made verbal requests to the administrators of both nurs-
ing homes for lists of bargaining unit employees. He re-
ceived no response and thereafter, on April 16, 1991, made
written requests for the names, addresses, and job classifica-
tions of employees at those nursing homes. The Union re-
ceived no response to those letters.
As indicated above, at this point, in June 1991, the Union
filed charges with the Board’s Regional Office alleging vio-
lations with respect to the failure to abide by the collective-
bargaining agreements and the refusal to provide the infor-
mation it had requested to ascertain the extent of noncompli-
ance with its agreements. After an investigation, a complaint
issued, but before the case came to trial, the Union and Re-
spondent reached an accommodation that resulted in the
Union’s requested withdrawal of the charges and the Re-
gional Director’s January 1992 conditional approval of the
withdrawal request and dismissal of the complaint based on
the charges. The substance of the accommodation was a pri-
vate settlement agreement between the Union and Michael
Konig on behalf of Respondent. Konig agreed to abide by
the collective-bargaining agreements insofar as the Weber
employees were concerned.2
Documentary evidence also indicates that, even after the
private agreement that led to the dismissal of the original
complaint, Respondent failed to fully apply the collective-
bargaining agreements to the Weber employees. Nor were
fringe and other benefits paid on their behalf. Respondent
does not dispute this continued failure to apply the agree-
ments to the Weber employees up to the point that new col-
lective-bargaining agreements were reached in early 1993.
B. Discussion and Analysis
1. The single employer and joint employer issues
In its brief, Respondent does not dispute the allegations
that Rosewood and Sterling are themselves single employers
and that Weber is a joint employer with them, within the
meaning of the Act. The parties stipulated that Sterling and
Rosewood were commonly owned. Both operated through
LTC which handled their payroll and accounting matters.
Their labor policies were commonly administered. Both uti-
lized Weber to provide additional employees and labor rela-
tions advice and help. Both were represented by Michael
Konig, their owner, in dealing with the Union over coverage
of the Weber employees under the Rosewood and Sterling
collective-bargaining agreements. There is also uncontra-
dicted testimony that there were transfers of employees be-
tween the two homes which were located in the same town
or city in New Jersey. In these circumstances, I find that
Sterling and Rosewood are single employers with each other,
and, in accordance with the stipulation of the parties, Ster-
ling, Rosewood, and LTC also constitute a single employer
within the meaning of the Act. See Goodman Investment Co.,
292 NLRB 340, 346–347 (1989).
Nor, in its brief, does Respondent dispute that Weber,
which was represented at the hearing by the same attorney
416 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent argues that when the Union’s health and pension
fund sent its periodic reports for the payment of fringe benefits, the
fund never ‘‘billed’’ Respondent for coverage for the Weber em-
ployees. This does not amount to clear and unequivocal notice that
Respondent was not abiding by its promise to cover those employ-
ees. Neither the fund nor the Union could know how many Weber
employees worked at the homes. Only Respondent would know this.
Significantly, the fringe benefit report forms contain language in
them asking that employers update their lists of covered employees,
a direction with which Respondent never fully and accurately com-
plied. Indeed, when the Union tried to obtain information on unit
employees, the Respondent refused to provide the information. In
short, it was not the Union’s obligation to bill Respondent for unit
employees it had no way of knowing were being used by Respond-
ent in contravention of its bargaining agreements. It is Respondent’s
burden in this proceeding to show that the Union had clear and un-
equivocal notice that the Respondent’s promises to resolve the mat-
ter of coverage of the Weber employees were rescinded. This is un-
derstandably a heavy burden, not met on this record.
who appeared for the other respondents, is a joint employer
with them. The evidence set forth in the factual exposition,
including the payroll and other records, the testimony of em-
ployees and the contracts between Weber and the nursing
homes, clearly shows that the Weber employees worked side
by side with the Rosewood and Sterling employees, and were
supervised by the same people. The evidence also shows that
Weber not only provided employees for the homes but exer-
cised joint administration and control over important labor
relations aspects of their employment. This evidence is suffi-
cient to establish joint employer status. See NLRB v. Brown-
ing-Ferris Industries, 691 F.2d 1117, 1122–1123 (3d Cir.
1982); and Whitewood Oriental Maintenance Co., 292 NLRB
1159 (1989).
2. The bargaining violations
Respondent does not dispute that it failed to provide the
Union with the names, addresses, and job classifications of
unit employees requested by it in 1991. The Union sought
this information in order to determine the extent to which
Weber employees were being used at Rosewood and Sterling
and whether they were being used in contravention of the
collective-bargaining agreements in effect at those locations.
Such information must be produced if relevant to a union’s
bargaining needs under a ‘‘broad discovery-type standard.’’
NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). In-
deed, such information is presumptively relevant and thus
Respondent’s failure to provide it to the Union in the cir-
cumstances of this case was violative of Section 8(a)(5) and
(1) of the Act. See Circuit-Wise, Inc., 308 NLRB 1091, 1097
(1992); and Illinois-American Water Co., 296 NLRB 715,
722–725 (1989), enfd. 933 F.2d 1368 (7th Cir. 1991).
Respondent also concedes, in its brief to me, that, at least
for the period of the 1990–1993 collective-bargaining agree-
ments, the Weber employees ‘‘were not afforded the medi-
cal, pension and other fringe benefits under the collective
bargaining agreement[s].’’ (Br. 6.) As I have mentioned
above in the factual statement, the evidence submitted by the
General Counsel supports the finding, which I make, that,
during this period, Respondent, at both nursing homes, failed
to apply to the Weber employees, a discrete group of unit
employees, the contractual terms and provisions set forth in
the applicable collective-bargaining agreements. Such failure
to apply significant provisions of a collective-bargaining
agreement to unit employees amounts to a refusal to bargain
in violation of Section 8(a)(5) and (1) and Section 8(d) of
the Act. See General Equipment Co., 297 NLRB 430 (1989);
Moeller Bros. Body Shop, 306 NLRB 191, 193 (1992);
Logan County Airport Contractors, 305 NLRB 854 (1991);
Stevens & Associates Construction Co., 307 NLRB 1403
(1992); Parkview Furniture Mfg. Co., 284 NLRB 947, 972–
973 (1987).
Respondent’s defense, as set forth in its brief, is two-
pronged. First, it alleges that the complaint is barred by the
statute of limitations in Section 10(b) of the Act, which re-
quires that a charge be filed within 6 months of the events
alleged to be unlawful. Secondly, it asserts that the pre-
viously dismissed complaint should not have been revived by
the Regional Director. Neither of these contentions has merit.
The cases cited by Respondent in support of its position
on the applicability of Section 10(b) are distinguishable on
their facts. Those cases involve repudiations of entire agree-
ments, of significant contract provisions, or of an already ex-
pired agreement in circumstances where it could be inferred
that, at some point outside the 6-month limitations period,
the union had a ‘‘clear and unequivocal notice’’ of a repudi-
ation or a completed violation, an issue as to which the Re-
spondent has the burden of proof. See NLRB v. Jerry Dur-
ham Drywall, 974 F.2d 1000, 1004–1005 (8th Cir. 1992), the
case chiefly relied on by Respondent. Here, on the other
hand, the initial charge was filed within the term of the exist-
ing agreements that were allegedly being applied to some but
not all of the unit employees, and in circumstances that could
hardly be viewed as presenting the Union with clear and un-
equivocal evidence of a repudiation or a completed violation
of the Act. Although the Union knew that some employees
were working outside the bargaining agreements and men-
tioned this alleged noncompliance to the Respondent, the Re-
spondent repeatedly promised to remedy the matter. Indeed,
the Respondent refused since 1991 to provide information
that would have given the Union a clearer picture of the al-
leged noncompliance, and, indeed, Respondent promised
once again to remedy the matter after Board proceedings
were initiated, leading to a dismissal of the original com-
plaint. At no time before the Union filed its original charges
in June 1991 did the Respondent change its position that it
was going to resolve the problem of coverage of the Weber
employees and demonstrate by clear and unequivocal notice
to the Union that it was not going to resolve the matter. The
Union thus had no reason to believe that a completed viola-
tion had occurred. In these circumstances, I reject Respond-
ent’s 10(b) defense to the complaint allegations in this case.3
Likewise without merit is the Respondent’s contention that
the Regional Director should have left well enough alone—
from its perspective—and dropped the case, never to reopen
it after having determined that the private settlement of the
parties had not held. It is well settled that where a settlement
agreement includes the withdrawal of a charge and where it
is shown that a respondent entered into the settlement that
prompted the withdrawal with ‘‘no intent to comply’’ with
it, the charge may be reinstated despite the expiration of the
Section 10(b) limitations period. Norris Concrete Materials,
282 NLRB 289, 291 (1986).
In this case, uncontradicted testimony establishes that the
Union withdrew its original charges on the promise that Re-
spondent would apply the bargaining agreements to the
417STERLING NURSING HOME
4 Weber, a party-respondent here, makes no separate contention to
escape liability, should a violation be found, under the principles of
Capitol EMI Music, Inc., 311 NLRB 997 (1993). Nor is there any
contention or showing that Weber had no reason to know about the
unfair labor practices involving the Weber employees. Thus, even if
Capitol EMI, which applies only to motivation-type violations, were
read to apply to bargaining-type violations, such as those involved
here, Weber would be subject to the Board’s Order.
5 The make-whole remedy shall be computed in accordance with
Board law. Wages owed shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Fringe benefit payments shall be computed in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979); and
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem.
661 F.2d 940 (9th Cir. 1981), and the funds are to made whole
under Stone Boat Yard, 264 NLRB 981 (1982), enfd. 715 F.2d 441
(9th Cir. 1983), cert. denied 466 U.S. 937 (1984). Union dues are
to be computed in accordance with Parkview Furniture Mfg. Co.,
284 NLRB 947, 974 (1987).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 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.’’
Weber employees. This was the basis for the Regional Direc-
tor’s conditional acceptance of the withdrawal and his dis-
missal of the original complaint. It turned out that Respond-
ent did not keep its promise. New charges were filed and an
investigation that necessitated court enforcement of an inves-
tigatory subpoena led to new complaints and a determination
by the Regional Director to withdraw his previous condi-
tional approval of the Union’s withdrawal request. Respond-
ent’s postwithdrawal conduct showed no change from its
prewithdrawal conduct, as it concedes in its brief. Thus, not
only has it exhibited a lack of good faith in terms of living
up to its promise to comply fully with the bargaining agree-
ments, but it has offered no other grounds for the Board to
stay its hand. Its unfair labor practices were never remedied
by agreement, compliance or in any other manner. The Re-
gional Director thus acted well within his discretion and in
the public interest when he decided to proceed with the liti-
gation of this case.4
CONCLUSIONS OF LAW
1. By failing to provide the Union with the names, ad-
dresses, and job classifications of Rosewood and Sterling
unit employees, the Respondent violated Section 8(a)(5) and
(1) of the Act.
2. By failing to apply to the Weber or SSI employees the
terms of the 1990–1993 Rosewood and Sterling collective-
bargaining agreements from December 7, 1990, through the
expiration of those agreements, Respondent violated Section
8(a)(5) and (1) and Section 8(d) of the Act.
3. The above violations constitute unfair labor practices
within the meaning of the Act.
THE REMEDY
I shall order the Respondent to cease and desist from the
unlawful conduct found herein and to take certain affirmative
actions to effectuate the policies of the Act. The Respondent
shall be ordered to honor the terms of the 1990–1993 collec-
tive-bargaining agreements and to apply the terms of the
agreements to the Weber employees from December 7, 1990,
until their expiration. The Respondent shall also be ordered
to make whole all employees for any losses sustained by
them by virtue of the failure to apply the agreements to
them, make the union benefit funds whole for monies owed
to them under the agreements, and make the Union whole for
any loss of dues as a result of the failure or delay in giving
effect to dues-checkoff authorizations by employees.5
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondents, Jonko, Inc. d/b/a Sterling Nursing
Home, Maple Shade, New Jersey; Extended Care Facilities,
Inc. d/b/a Rosewood Manor Nursing Center, Maple Shade,
New Jersey; LTC Consulting, Teaneck, New Jersey; and
Weber Management, Inc., Brooklyn, New York, their offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to apply all provisions of the 1990–1993 Rose-
wood and Sterling bargaining agreements with the Union
(Local 815–S a/w Production Service and Sales District
Council) to Weber employees.
(b) Failing to provide the Union with information relevant
to its collective-bargaining responsibilities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole the Weber employees who have per-
formed work in the bargaining unit covered by the 1990–
1993 collective-bargaining agreements between Respondent
and the Union for the loss of wages and benefits they have
suffered by virtue of the Respondent’s failure to apply the
agreements to them; and also make whole the Union’s fringe
benefit funds and the Union itself for the failure to make
fringe benefit payments and union dues under the applicable
1990–1993 agreements on behalf of the Weber employees.
(b) Provide to the Union all relevant information concern-
ing the unit employees covered by the Rosewood and Ster-
ling collective-bargaining agreements in response to the
Union’s request for such information.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, 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.
(d) Post at its facilities in Maple Shade, New Jersey copies
of the attached notice marked ‘‘Appendix.’’7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taken by the Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail to apply all provisions of the 1990–
1993 Rosewood and Sterling bargaining agreements with the
Union (Local 815-S a/w Production Service and Sales Dis-
trict Council) to Weber employees.
WE WILL NOT fail to provide the Union with information
relevant to its collective-bargaining responsibilities.
WE WILL make whole the Weber employees who have
performed work in the bargaining unit covered by the 1990–
1993 collective-bargaining agreements between Respondent
and the Union for the loss of wages and benefits they have
suffered by virtue of the Respondent’s failure to apply the
agreements to them; and WE WILL also make whole union
fringe benefit funds and the Union itself for our failure to
make fringe benefit and union dues payments under the
1990–1993 agreements on behalf of the Weber employees.
WE WILL provide to the Union all relevant information
concerning the unit employees covered by the Rosewood and
Sterling collective-bargaining agreements in response to the
Union’s request for such information.
JONKO, INC. D/B/A STERLING NURSING HOME,
EXTENDED CARE FACILITIES, INC. D/B/A
ROSEWOOD MANOR NURSING CENTER, AND
LTC CONSULTING
WEBER MANAGEMENT, INC.