Williamsville Suburban, LLC

National Labor Relations Board - Board Decisions

Jan 11, 2017

365 NLRB No. 14 (N.L.R.B. 2017)

365 NLRB No. 14
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.
Williamsville Suburban, LLC and 1199 SEIU United
Healthcare Workers East.
Sheridan Manor, LLC and 1199 SEIU United
Healthcare Workers East. Cases 03–CA–167978
and 03–CA–168008
January 11, 2017
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
The General Counsel seeks a default judgment in these
cases pursuant to the terms of bilateral informal settle-
ment agreements. Upon charges filed by 1199 SEIU
United Healthcare Workers East (the Union) on January
20, 2016 against Williamsville Suburban, LLC (Re-
spondent Williamsville) in Case 03–CA–167978 and
against Sheridan Manor, LLC (Respondent Sheridan) in
Case 03–CA–168008, Respondent Williamsville and Re-
spondent Sheridan (collectively, the Respondents) en-
tered into bilateral informal settlement agreements with
the Union, which were approved by the Regional Direc-
tor for Region 3 on May 11, 2016. The settlement
agreements, which were identical to one another, re-
quired the Respondents to (1) furnish the Union with the
information it requested on December 15, 2015, and Jan-
uary 4 and 12, 2016; (2) post appropriate notices; and (3)
notify the Regional Director what steps they have taken
to comply with the agreements.
Each of the settlement agreements also contained the
following provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days no-
tice from the Regional Director of the National Labor
Relations Board of such non-compliance without rem-
edy by the Charged Party, the Regional Director will
issue a complaint that includes the allegations covered
by the Notice to Employees, as identified above in the
Scope of Agreement section, as well as filing and ser-
vice of the charge(s), commerce facts necessary to es-
tablish Board jurisdiction, labor organization status,
appropriate bargaining unit (if applicable), and any oth-
er allegations the General Counsel would ordinarily
plead to establish the unfair labor practices. Thereafter,
the General Counsel may file a Motion for Default
Judgment with the Board on the allegations of the
Complaint. The Charged Party understands and agrees
that all of the allegations of the Complaint will be
deemed admitted and that it will have waived its right
to file an Answer to such Complaint. The only issue
that the Charged Party may raise before the Board will
be whether it defaulted on the terms of this Settlement
Agreement. The General Counsel may seek, and the
Board may impose, a full remedy for each unfair labor
practice identified in the Notice to Employees. The
Board may then, without necessity of trial or any other
proceeding, find all allegations of the Complaint to be
true and make findings of fact and conclusions of law
consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings.
The Board may then issue an Order providing a full
remedy for the violations found as is appropriate to
remedy such violations. The parties further agree that a
U.S. Court of Appeals Judgment may be entered en-
forcing the Board Order ex parte, after service or at-
tempted service upon Charged Party at the last address
provided to the General Counsel.
By letters dated May 16 and 18, 2016, respectively, the
Compliance Officer for Region 3 sent Respondent Wil-
liamsville and Respondent Sheridan a copy of the con-
formed settlement agreement for Cases 03–CA–167978
and 03–CA–168008, along with a cover letter advising
them of the steps necessary to comply with the settle-
ment agreements. The letters requested each Respondent
to return a signed and dated Notice to Employees and a
completed Certification of Compliance form by May 25,
2016, and to provide the requested information to the
Union by May 31, 2016. The Respondents failed to
comply.
By email dated June 7, 2016, the Compliance Officer
notified the Respondents’ counsel that the Respondents
had not supplied the information required by the settle-
ment agreements, returned the signed and dated Notices
to Employees, or returned the Certification of Compli-
ance forms. The email advised that the Respondents had
14 days from the date of the email to cure this default or
the Region would issue complaint(s) in this matter pur-
suant to the terms of the settlement agreements. About
June 17, 2016, Respondent Williamsville provided cer-
tain information. On June 21, 2016, the Compliance
Officer informed the Respondents’ counsel that the pro-
duced information was not sufficient and extended the
default date to June 27, 2016. The Respondents failed to
comply.
Accordingly, pursuant to the terms of the noncompli-
ance provisions of the settlement agreements, on July 14,
2016, the Regional Director issued a consolidated com-
plaint, and the General Counsel filed a Motion for De-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fault Judgment with the Board. On July 20, 2016, the
Board issued an order transferring the proceeding to the
Board and Notice to Show Cause why the motion should
not be granted. The Respondents filed a response.
Ruling on Motion for Default Judgment
In their response to the Notice to Show Cause, the Re-
spondents assert that the Board should deny the General
Counsel’s motion. The Respondents contend that they
“did not materially default on the terms of the
[s]ettlement [a]greements” and that “upon information
and belief, Respondents have provided information re-
sponsive to the Union’s information requests of Decem-
ber 15, 2015, January 4, 2016 and January 12, 2016, and
have posted the required notices.” The Respondents
state that “[e]mail exhibits attached to the General Coun-
sel’s papers confirm that in fact information was provid-
ed to the Union pursuant to the [s]ettlement
[a]greements.”
In his motion, the General Counsel alleges that the Re-
spondents have failed to comply with the terms of the
settlement agreements by failing to provide the Union
with all the requested information and failing to send to
the Regional Office signed copies of the Notice to Em-
ployees along with completed Certification of Compli-
ance forms. Indeed, the Respondents do not directly
dispute the General Counsel’s assertion that they failed
to comply with the settlement agreements. Rather, the
Respondents assert that they “did not materially default
on the terms of the [s]ettlement [a]greements” (emphasis
added), and they argue that they “have provided infor-
mation responsive to the Union’s information requests”
as shown by the exhibits attached to the General Coun-
sel’s motion. However, the exhibits do not demonstrate
that the Respondents provided all the information re-
quested by the Union on December 15, 2015, and Janu-
ary 4 and 12, 2016. In fact, the exhibits show that Re-
spondent Williamsville provided insufficient information
to the Union and Respondent Sheridan provided none.
Thus, the Respondents fail to dispute the assertions made
by the General Counsel that all the information required
to be furnished under the terms of the settlement agree-
ments has not been provided. Also, the Respondents
provide no support for their claim that they have posted
the Notice to Employees or explain their failure to pro-
vide the Region with a signed and dated Notice or com-
pleted Certification of Compliance forms.
The noncompliance provisions in the settlement
agreements provide that “[t]he only issue that the
Charged Party may raise before the Board will be wheth-
er it defaulted on the terms of this Settlement Agree-
ment.” As described, the Respondents have not shown
that they have fully complied with the agreements. The
settlement agreements further provide that “[t]he Board
may then, without necessity of trial or any other proceed-
ing, find all allegations of the Complaint to be true and
make findings of fact and conclusions of law consistent
with those allegations adverse to the Charged Party on all
issues raised by the pleadings.” Therefore, in light of the
undisputed assertions by the General Counsel that the
Respondents have not provided the required information
and have otherwise failed to comply with the terms of the
settlement agreements, we find that the Respondents
have failed to raise any material issue of fact warranting
a hearing.1
Accordingly, we grant the General Counsel’s Motion
for Default Judgment and find, pursuant to the noncom-
pliance provisions of the settlement agreements set forth
above, that all of the allegations in the complaint are
true.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Williamsville has
been a corporation with an office and place of business in
Williamsville, New York, where it operates a nursing
home. Annually, Respondent Williamsville derives
gross revenues in excess of $100,000. Annually, Re-
spondent Williamsville purchases and receives at its Wil-
liamsville, New York facility goods and materials valued
in excess of $5000 directly from points outside the State
of New York.
At all material times, Respondent Sheridan has been a
corporation with an office and place of business in To-
nawanda, New York, where it operates a nursing home.
Annually, Respondent Sheridan derives gross revenues
in excess of $100,000. Annually, Respondent Sheridan
purchases and receives at its Tonawanda, New York fa-
cility goods and materials valued in excess of $5000 di-
rectly from points outside the state of New York.
We find that the Respondents are employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and health care institutions within the
meaning of Section 2(14) of the Act. We also find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.

1 See, e.g., Bristol Manor Health Care Center, 360 NLRB 38, 39
(2013) (company’s failure to respond to specific allegations that it had
breached settlement agreement by failing to provide information, as set
forth in General Counsel’s motion, and failure to come forward with
anything specifically supporting its general denial that it had breached
settlement agreement warranted finding that the complaint allegations
were true).
2 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
WILLIAMSVILLE SUBURBAN, LLC 3
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondents within the
meaning of Section 2(11) of the Act and agents of the
Respondents within the meaning of Section 2(13) of the
Act.
Nicole Gallagher - Williamsville Administrator
Moshe Kelman - Owner
Legal Representative - Unnamed
Mark Smeltzer - Sheridan Administrator
Sharon Zeames - Williamsville Administrator
The following employees of Respondent Williamsville
(Williamsville unit) constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Range of Motion
Aides, Activities Aides, Rehab Aides, Unit Clerks, and
Maintenance Department employees, excluding all
Nurse Managers, other managers, guards, confidential
employees and supervisors as defined by the Act, and
all other employees.
At all material times, Respondent Williamsville has
recognized the Union as the exclusive collective-
bargaining representative of the Williamsville unit. This
recognition has been embodied in a collective-bargaining
agreement effective from July 27, 2013, through August
1, 2016.
The following employees of Respondent Sheridan
(Sheridan unit) constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:3
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Unit Secretaries
employed by the Employer at its 2799 Sheridan Dr.,
Tonawanda, NY facility, excluding all other clerical
employees, confidential employees, guards, profession-
al employees and supervisors as defined by the Act and
all other employees.
At all material times, Respondent Sheridan has recog-
nized the Union as the exclusive collective-bargaining
representative of the Sheridan unit. This recognition has
been embodied in a collective-bargaining agreement ef-
fective from May 20, 2015, through April 30, 2017.

3 We have corrected a typographical error in the Sheridan unit de-
scription.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the Williamsville Unit and the Sheridan
Unit (Units).
About December 15, 2015, and January 4 and 12,
2016, the Union requested in writing that Respondent
Williamsville and Respondent Sheridan furnish the Un-
ion with the following information on a weekly basis:
• Hours worked by bargaining unit employees as
well as agency employees.
• Lists of any/all new hires including bargaining
unit and agency employees.
The information requested by the Union, described
above, is necessary for and relevant to the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the Units.
Since about December 15, 2015, the Respondents have
failed and refused to furnish the Union with the infor-
mation requested by it as described above.
CONCLUSION OF LAW
By the conduct described above, the Respondents have
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of their employees in violation of Section
8(a)(5) and (1) of the Act. The Respondents’ unfair la-
bor practices described above affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. The Gen-
eral Counsel requested that we find all the allegations in
the complaint to be true. We have done so and have
found that the Respondents violated Section 8(a)(5) and
(1) of the Act by failing and refusing to furnish the Un-
ion with certain requested information that is necessary
and relevant to the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
units. Accordingly, we shall order the Respondents to
cease and desist from such conduct and to furnish the
Union with the information that it requested on or about
December 15, 2015, and January 4 and 12, 2016, by
providing the Union, on a weekly basis:
• Hours worked by bargaining unit employees as
well as agency employees.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
• Lists of any/all new hires including bargaining
unit and agency employees.4
ORDER
A. The National Labor Relations Board orders that
Respondent Williamsville Suburban, LLC, Williams-
ville, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with 1199 SEIU United Healthcare Workers
East (the Union) as the exclusive collective-bargaining
representative of the unit employees by failing and refus-
ing to furnish the Union with requested information that
is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
bargaining unit:
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Range of Motion
Aides, Activities Aides, Rehab Aides, Unit Clerks, and
Maintenance Department employees, excluding all
Nurse Managers, other managers, guards, confidential
employees and supervisors as defined by the Act, and
all other employees.
(b) 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) Furnish the Union with the information it request-
ed on or about December 15, 2015, and January 4 and
12, 2016, providing, on a weekly basis:
• Hours worked by bargaining unit employees as
well as agency employees.
• Lists of any/all new hires including bargaining
unit and agency employees.
And email to the Compliance Officer copies of its re-
sponses to these information requests.
(b) Within 14 days after service by the Region, post at
its facility in Williamsville, New York copies of the at-
tached notice marked “Appendix A.”5 Copies of the no-

4 The General Counsel also requests that the Respondents “email to
the Compliance Officer copies of [their] responses to the Union’s in-
formation requests.” In the circumstances of this case, we shall grant
this remedy.
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 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.”
tice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since December 15, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. The National Labor Relations Board orders that
Respondent Sheridan Manor, LLC, Tonawanda, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with 1199 SEIU United Healthcare Workers
East (the Union) as the exclusive collective-bargaining
representative of the unit employees by failing and refus-
ing to furnish the Union with requested information that
is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
bargaining unit:
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Unit Secretaries
employed by the Employer at its 2799 Sheridan Dr.,
Tonawanda, NY facility, excluding all other clerical
employees, confidential employees, guards, profession-
al employees and supervisors as defined by the Act and
all other employees.
(b) 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) Furnish the Union with the information it request-
ed on or about December 15, 2015, and January 4 and
12, 2016, providing, on a weekly basis:
WILLIAMSVILLE SUBURBAN, LLC 5
• Hours worked by bargaining unit employees as
well as agency employees.
• Lists of any/all new hires including bargaining
unit and agency employees.
And email to the Compliance Officer copies of its re-
sponses to these information requests.
(b) Within 14 days after service by the Region, post at
its facility in Tonawanda, New York, copies of the at-
tached notice marked “Appendix B.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 3, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If 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 cur-
rent employees and former employees employed by the
Respondent at any time since December 15, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. January 11, 2017
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

6 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.”
APPENDIX A
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with 1199 SEIU United Healthcare
Workers East (the Union) as the exclusive collective-
bargaining representative of our unit employees by fail-
ing and refusing to furnish the Union with requested in-
formation that is necessary for and relevant to the Un-
ion’s performance of its duties as the exclusive collec-
tive-bargaining representative of the following employ-
ees in the collective-bargaining unit:
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Range of Motion
Aides, Activities Aides, Rehab Aides, Unit Clerks, and
Maintenance Department employees, excluding all
Nurse Managers, other managers, guards, confidential
employees and supervisors as defined by the Act, and
all other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish the Union with the information it re-
quested on or about December 15, 2015, and January 4
and 12, 2016, providing, on a weekly basis:
• Hours worked by bargaining unit employees as
well as agency employees.
• Lists of any/all new hires including bargaining
unit and agency employees.
And WE WILL email to the Board’s Compliance Officer
copies of our responses to these requests.
WILLIAMSVILLE SUBURBAN, LLC
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-167978 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
APPENDIX B
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with 1199 SEIU United Healthcare
Workers East (the Union) as the exclusive collective-
bargaining representative of our unit employees by fail-
ing and refusing to furnish the Union with requested in-
formation that is necessary for and relevant to the Un-
ion’s performance of its duties as the exclusive collec-
tive-bargaining representative of the following employ-
ees in the collective-bargaining unit:
All full-time and regular part-time Licensed Practical
Nurses, Certified Nursing Assistants, Unit Secretaries
employed by us at our 2799 Sheridan Dr., Tonawanda,
NY facility, excluding all other clerical employees,
confidential employees, guards, professional employ-
ees and supervisors as defined by the Act and all other
employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish the Union with the information it re-
quested on or about December 15, 2015, and January 4
and 12, 2016, providing, on a weekly basis:
• Hours worked by bargaining unit employees as
well as agency employees.
• Lists of any/all new hires including bargaining
unit and agency employees.
And WE WILL email to the Board’s Compliance Officer
copies of our responses to these requests.
SHERIDAN MANOR, LLC
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-167978 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.