Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, Single Employer, (2011)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, a single employer and Local Union No. 1305, Professional and Public Service Employees of Cambria County a/w the Laborers2019 International Union of North America

Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, a single employer and SEIU Healthcare Pennsylvania, CTW, CLC. Cases 62013CA201336791, 62013CA201336803, and 62013CA201336915

November 30, 2011

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES

On December 16, 2010, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief. In addition, the Acting General Counsel and Charging Party SEIU Healthcare Pennsylvania (SEIU) each filed limited exceptions and a supporting brief, the Respondent filed a brief answering the limited exceptions, and the Acting General Counsel and SEIU each filed a reply brief.

The National Labor Relations Board has considered the decision and the record¹ in light of the exceptions and briefs, and has decided to affirm the judge2019s rulings, findings,² and conclusions,³ and to adopt the recommended Order as modified below.⁴

¹ We grant SEIU2019s unopposed motion to correct the record by adding page 40 to the Acting GC Exh. 18, which is SEIU2019s last memorandum of understanding with the Respondent2019s predecessor, Cambria County, Pennsylvania.

² The Respondent has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

³ We affirm the judge2019s conclusion that the Respondent did not unlawfully refuse to recognize SEIU as the collective-bargaining representative of its nursing employees following the Respondent2019s purchase of the Laurel Crest nursing home from Cambria County, a public employer. The Acting General Counsel2019s theory was that SEIU enjoyed a continuing presumption of majority status for purposes of collective bargaining under Federal labor law, notwithstanding the limited 201cmeet and discuss201d nature of its prior relationship with the County under State labor law covering public employers. On exceptions, SEIU contends that page 40 of its last memorandum with the County contained 201csuc-

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below, and orders that the Respondents, Grane Healthcare Co. and/or Ebensburg Care Center LLC d/b/a Cambria Care Center, a single employer, Ebensburg, Pennsylvania, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the attached notice for that of the administrative law judge.

   Dated, Washington, D.C. November 30, 2011

   Mark Gaston Pearce, Chairman

   Craig Becker, Member

   Brian E. Hayes, 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.

   cessorship201d language requiring the Respondent to recognize SEIU as the nursing employees2019 representative. SEIU also contends that a presuccessorship employee petition directed to the Cambria County Board of Commissioners demonstrates the nurses2019 actual majority support for SEIU. Both of these contentions, however, expand the Acting General Counsel2019s theory of the alleged violation, and thus we do not pass on them. See, e.g., Nott Co., 345 NLRB 396, 398 fn. 10 (2005); Kimtruss Corp., 305 NLRB 710, 711 (1991).

   Finally, we affirm the judge2019s findings that the Respondent violated Sec. 8(a)(3) and (1) by refusing to hire five of the predecessor employer2019s employees, four of whom were officials of Charging Party Laborers Local 1305. In doing so, we find it unnecessary to rely on the judge2019s statement at sec. II,B,3 of his decision that the Respondent2019s disproportionate nonhiring of Local 1305 officials relative to nonofficials would be sufficient alone to establish unlawful motivation. Member Hayes would not rely at all on the evidence of a disproportionate hiring pattern to establish animus. He relies solely on the fact that the Respondent2019s explanation for its decision not to hire the five discriminatees was pretextual.

   ⁴ Granting one of the Acting General Counsel2019s limited exceptions, we will add the full name of Laborers Local 1305 to the remedial notice.

   357 NLRB No. 123

   2

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   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 benefit and protection

   Choose not to engage in any of these protected activities.

   WE WILL NOT fail and refuse to recognize and bargain with Local Union No. 1305, Professional and Public Service Employees of Cambria County a/w the Laborers2019 International Union of North America (Local 1305), as the exclusive collective-bargaining representative of our employees in the following appropriate unit:

   The unit of nonprofessional employees more particularly described in the collective-bargaining agreement between Cambria County and Local 1305 which expired on December 31, 2008.

   WE WILL NOT refuse to hire you because of your union activities.

   WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.

   WE WILL recognize and, on request, bargain with Local 1305 and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit.

   WE WILL, within 14 days from the date of the Board2019s Order, offer Mark Mulhearn, Beverly Weber, Sherry Hagerich, Joseph Billy, and Roxanne Lamer instatement to the positions for which they applied or, if these positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges.

   WE WILL make Mark Mulhearn, Beverly Weber, Sherry Hagerich, Joseph Billy, and Roxanne Lamer whole for any loss of earnings and other benefits suffered as a result of the discrimination against them less any net interim earnings, plus interest.

   WE WILL, within 14 days from the date of the Board2019s Order, remove from our files any reference to the unlawful refusals to hire Mark Mulhearn, Beverly Weber, Sherry Hagerich, Joseph Billy, and Roxanne Lamer, and

   WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the refusals to hire will not be used against them in any way.

   GRANE HEALTHCARE CO. AND EBENSBURG

   CARE CENTER, LLC D/B/A CAMBRIA CARE

   CENTER

   Patricia J. Daum, Esq., for the General Counsel.

   Richard J. Antonelli, Esq. and John A. McCreary Jr., Esq. (Babst, Calland, Clements & Zomnir, P.C.), of Pittsburgh, Pennsylvania, for the Respondent.

   Domenic A. Bellisario, Esq. (The Law Offices of Domenic A. Bellisario), of Pittsburgh, Pennsylvania, for the Charging Party Laborers2019 Union.

   Claudia Davidson, Esq. (Law Office of Claudia Davidson), of

   Pittsburgh, Pennsylvania, for the Charging Party SEIU.

   DECISION

   INTRODUCTION

   DAVID I. GOLDMAN, Administrative Law Judge. These cases involve a company that acquired a nursing home that for many years had been owned and operated by a county employer. Principals of the company established a new entity for the purpose of operating the nursing home. The new employer hired most, but not all, of the employees who had worked for the nursing home when it was county owned. The new employer refused to recognize or bargain with the two unions that represented employees at the county nursing home.

   The government alleges that the employer is a successor employer under National Labor Relations Board (Board) precedent, and that its refusal to recognize and bargain with the unions violates the National Labor Relations Act (Act). The government further contends that the employer2019s decision not to hire certain of county2019s employees2014specifically, certain employees who were officials of one union and another employee who was active in attempting to assist her union in securing a meeting with the new owners2014was unlawfully motivated in violation of the Act. Finally, the government alleges that the buyer of the nursing home, which assists in managing the nursing home, along with the operating entity it established, are a single employer under the Act2019s precedents.

   STATEMENT OF THE CASE

   On January 8, 2010, Local Union No. 1305, Professional and Public Service Employees of Cambria County a/w the Laborers2019 International Union of North America (Laborers or Local 1305) filed an unfair labor practice charge, amended May 24, 2010, against Grane Healthcare Co. (Grane) and/or Ebensburg Care Center LLC temporarily d/b/a Cambria Care Center (Cambria Care), docketed by Region 6 of the Board as Case 62013 CA201336791.

   On January 15, 2010, SEIU Healthcare Pennsylvania, CTW, CLC (SEIU) filed an unfair labor practice charge, amended May 24, 2010, against Grane and/or Cambria Care docketed by Region 6 of the Board as Case...