Windsor Skyline Care Center

National Labor Relations Board - Administrative Judge Opinions

Nov 26, 2012

32-CA-076250 (N.L.R.B. Nov. 26, 2012)

JD(SF)–55–12
Monterey, Salina and
Fremont, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
WINDSOR SKYLINE CARE CENTER
and Case 32–CA–076250
SEIU UNITED HEALTHCARE
WORKERS – WEST
WINDSOR MONTEREY CARE CENTER
and Case 32–CA–076255
SEIU UNITED HEALTHCARE
WORKERS – WEST
WINDSOR COUNTRY DRIVE CARE CENTER
and Case 32–CA–076262
SEIU UNITED HEALTHCARE
WORKERS – WEST
WINDSOR THE RIDGE
REHABILITATION CENTER
and Case 32–CA–076266
SEIU UNITED HEALTHCARE
WORKERS – WEST
Noah J. Garber Esq., for the General Counsel.
Robert M. Stone, Esq., for the Respondent.
Manuel A. Boigues, Esq., for the Charging Party.
DECISION
Statement of the Case
Eleanor Laws, Administrative Law Judge. This case was tried based on a joint motion
and stipulation of facts approved by Acting Associate Chief Administrative Law Judge
Gerald M. Etchingham October 4, 2012. SEIU United Healthcare Workers – West (the
Charging Party or Union) filed the respective charges in each of the above-captioned cases on
March 8, 2012, and the Acting General Counsel issued the consolidated Complaint on
June 15, 2012. The Respondents, Windsor Skyline Care Center (Skyline), Windsor Monterey
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Care Center (Monterey), Windsor Country Drive Care Center (Country), and Windsor the Ridge
Rehabilitation Center (Ridge), filed a timely consolidated answer on June 29, 2012, denying all
material allegations and setting forth affirmative defenses.
The Complaint alleges that Respondents violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act) by unilaterally ceasing to check off Union dues employees had
authorized as payroll deductions and ceasing to remit those dues to the Union upon expiration
of the respective collective bargaining agreements.1
On the entire record and after considering the briefs filed by the Acting General Counsel
and Respondents,2 I make the following
Findings of Fact
I. Jurisdiction
The various Windsor facilities—Skyline, Monterey, Country Drive, and Ridge—are each
California limited liability corporations. Skyline and Ridge have facilities in Salinas, California;
Monterey has a facility in Monterey, California; and Country has a facility in Fremont, California.
Respondents Skyline, Monterey, and Country operate nursing homes that provide medical care.
Respondent Ridge operates a skilled nursing facility that provides medical care. Respondents
admit, and I find, that each is a health care institution within the meaning of Section 2(14) of the
Act. Respondents each derived gross revenues in excess of $100,000 and purchased and
received goods or services valued at $5,000 from points outside of California. Respondents
admit, and I find, that each is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. The Union admits, and I find, that it is a labor organization within
the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Collective Bargaining Agreements
1. Skyline
At all material times since at least December 2009, Skyline has recognized the Union as
the exclusive bargaining representative for the following unit:
All full-time and regular part-time certified nursing assistants, restorative nursing
assistants, nursing assistants, care partners uncertified assistive personnel, cooks,
dietary aides, housekeepers, janitors, laundry aides and maintenance workers employed
by Respondent Skyline at its Salinas, California facility; excluding all other employees,
guards, and supervisors as defined in the National Labor Relations Act.

1 Other recent cases allege essentially the same violation, challenging Bethlehem Steel Co.,
136 NLRB 1500 (1962), enf. denied on other grounds, 320 F.2d 615 (3d Cir. 1963). See, e.g.,
WKYC, Inc., 8–CA–39190, JD–60–11 (2011 WL 4543697); Nebraskaland, Inc., 2–CA–39996,
JD(NY)–46–11 (2011 WL 6002194); USIC Locating Services, Inc., 6–CA–37328, JD–03–12
(2012 WL 76860); WHDH-TV, 1–CA–46744, JD(NY)–10–12 (2012 WL 1229612); Healthbridge
Mgt., LLC, 34–CA–12964, JD(NY)–21–12 (2012 WL 2992088), and C & G Distributing Co., Inc.,
9–CA–78875, JD–57–12 (2012 WL 5494946).
2 The Union did not file a brief.
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The Union and Skyline have entered into successive collective bargaining agreements, the most
recent (the Skyline Agreement), effective from December 1, 2009 to December 31, 2011.
2. Monterey
At all material times since at least December 2009, Monterey has recognized the Union
as the exclusive collective bargaining representative for the following unit:
All full-time and regular part-time certified nursing assistants, restorative nursing
assistants, nursing assistants, care partners uncertified assistive personnel, cooks,
dietary aides, housekeepers, janitors, laundry aides and maintenance workers employed
by Respondent Monterey at its Monterey, California facility; excluding all other
employees, guards, and supervisors as defined in the National Labor Relations Act.
The Union and Monterey have entered into successive collective bargaining agreements, the
most recent (the Monterey Agreement), effective from December 1, 2009 to December 31,
2011.
3. Country
At all material times since at least December 2009, Country has recognized the Union as
the exclusive collective bargaining representative for the following unit:
All full-time and regular part-time certified nursing assistants, restorative nursing
assistants, nursing assistants, care partners uncertified assistive personnel, cooks,
dietary aides, housekeepers, janitors, laundry aides and maintenance workers employed
by Respondent Country at its Fremont, California facility; excluding all other employees,
guards, and supervisors as defined in the National Labor Relations Act.
The Union and Country have entered into successive collective bargaining agreements, the
most recent (the Country Agreement), effective from December 1, 2009 to December 31, 2011.
4. Ridge
At all material times since at least December 2009, Country has recognized the Union as
the exclusive collective bargaining representative for the following unit:
All full-time and regular part-time certified nursing assistants, restorative nursing
assistants, nursing assistants, care partners uncertified assistive personnel, cooks,
dietary aides, housekeepers, janitors, laundry aides and maintenance workers employed
by Respondent Ridge at its Salinas, California facility; excluding all other employees,
guards, and supervisors as defined in the National Labor Relations Act.
The Union and Ridge have entered into successive collective bargaining agreements, the most
recent (the Ridge Agreement), effective from December 1, 2009 to December 31, 2011.
B. Union Security and Dues Check-off Provisions
Each of the collective bargaining agreements described above contains an identical
union security and dues check-off provision. The Union security provision, Article 3.1, states:
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Not later than the thirty-first (31st) day following the beginning of employment, or the
effective date of this Agreement, or the execution date of this Agreement, whichever is
later, every employee subject to the terms of this Agreement shall, as a condition of
employment, become and remain a member of the Union, paying the periodic dues and
initiation fees uniformly required, or, in the alternative, shall, as a condition of
employment, pay a fee in the amount equal to the periodic dues and initiation fees
uniformly required as a condition of acquiring or retaining membership, or, if the
employee objects to the payment of that agency fee, such employee shall, as a condition
of employment, pay that portion of the agency fee that is related to the Union's
representation costs. At the time a new employee is hired who will be subject to this
Agreement, the Employer shall deliver to the employee a written notice stating that the
Employer recognizes the Union as the collective bargaining agent for the employees
covered by this Agreement and quoting or paraphrasing the provisions of this Section of
the Agreement, and the Beck Notice.
The voluntary dues check-off provision, Article 3.2, states:
Upon voluntary signed authorization by an employee, the Employer agrees to deduct
the Union dues and initiation fees, and remit same to the office of the Union not later
than the 10th day of the month following the month in which the dues were deducted.
(Exhibit 5). The dues for each of the Respondents’ employees equal approximately two percent
of their bi-weekly wages.
As of December 31, 2011, approximately 60 Skyline unit employees authorized payroll
deductions for Union dues, as did approximately 63 Monterey unit employees, 84 Country unit
employees, and 92 Ridge unit employees. No employee revoked his or her authorization
between December 31, 2011 and August 10, 2012.
C. Cessation of Dues Check-off
Upon expiration of each of the collective bargaining agreements described above,
without giving notice to the Union, the Respondents ceased checking off union dues from
employees who had signed payroll deduction authorizations and ceased remitting those dues to
the Union. The Respondents failed to deduct and remit the Union dues from January 1, 2012
until new collective bargaining agreements were reached at each facility on August 10, 2012.
III. Decision and Analysis
As the Acting General Counsel concedes, this Complaint is an attempt to overturn the
Board’s decision in Bethlehem Steel Co., 136 NLRB 1500 (1962), enf. denied on other grounds,
320 F.2d 615 (3d Cir. 1963), and cases following it. In Bethlehem Steel, the Board reasoned
that because the Union’s rights to dues checkoffs was created by contracts, “when the contracts
terminated, the Respondent was free of its checkoff obligations to the Union.” Id. at 1502.
To support its contention that Bethlehem Steel should be overturned, the Acting General
Counsel first notes that the Court of Appeals for the Ninth Circuit has twice vacated and
remanded Board decisions in Hacienda Resort Hotel & Casino, 331 NLRB 665, 667–72 (2000)
(Hacienda I), vacated and remanded sub nom. Local Joint Executive Board of Las Vegas v.
NLRB, 309 F.3d 578, 584–85 (9th Cir. 2002); and Hacienda Resort Hotel & Casino, 351 NLRB
504 (2007) (Hacienda II), vacated and remanded sub nom. Local Joint Executive Board of Las
Vegas, Culinary Workers Local 226 v. NLRB, 540 F.3d 1072 (9th Cir. 2008), because it was
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unable to discern the Board’s rationale for excluding dues checkoffs from the unilateral change
doctrine.3 Further, in Hacienda Resort Hotel & Casino (Hacienda III), 355 NLRB No. 154
(2010), on second remand from the Ninth Circuit the Board was deadlocked 2–2 on whether to
overturn Bethlehem Steel.4 Lacking a majority to form a different rule, the Board adhered to
Bethlehem Steel and its progeny. On appeal, the Court held “there is no justification for carving
out an exception to the unilateral change doctrine for dues-checkoff in the absence of union
security.” Local Joint Executive Board of Las Vegas, Culinary Workers Local 226 v. NLRB, 657
F.3d 865, 874–75 (2011). Importantly, the Court did not rule on the situation, present here,
where there is a union security clause compelling employees to join the Union or pay dues to it
as a condition of employment.
The Acting General Counsel raises additional arguments to support its position that
Bethlehem Steel should be reversed. I am, however, bound by Board precedent. See Waco,
Inc., 273 NLRB 746, 749 fn.14 (1984); Iowa Beef Packers, 144 NLRB 615, 616 (1963). I further
note that the Board has recently declined to reverse Bethlehem Steel. See Hargrove Electric
Co., 358 NLRB No. 147, slip op. at 1 fn.1 (2012).
The Respondents assert that any reconsideration of Bethlehem Steel should also
include a holding that dues checkoff is not a mandatory subject of bargaining.5 Respondents
acknowledge, however, that this cannot occur until the matter reaches the Board. The same
holds true for Respondents’ arguments based on estoppel, manifest injustice, and statutory
violations.
Based on the foregoing, I conclude that the Respondents’ actions of ceasing to check off
Union dues from employees who had signed payroll deduction authorizations and ceasing to
remit those dues to the Union from December 31, 2011 to August 10, 2012 did not violate
Section 8(a)(1) and (5) of the Act.
Conclusions of Law
Respondents’ actions of ceasing to check off Union dues from employees who had
signed payroll deduction authorizations and ceasing to remit those dues to the Union did not
violate Sections 8(a)(1) and (5) of the Act.
Accordingly, based on the foregoing findings of fact and conclusions of law and the
entire stipulated record, I issue the following recommended6

3 Pursuant to NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962), unilateral
changes to mandatory subjects of bargaining violate the Act.
4 One Board member had recused himself.
5 I note the Respondents’ brief requests a holding that dues checkoff is a mandatory subject
of bargaining and can only conclude there is an inadvertent omission of the word “not”.
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The complaint is dismissed.
Dated, Washington, D.C November 26, 2012

____________________
Eleanor Laws
Administrative Law Judge