HealthBridge Management, Care Realty (a/k/a CareOne), et al.,
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.
HealthBridge Management, LLC; 107 Osborne Street Operating Company II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center1 and New England Health Care Employees Union, District 1199, SEIU, AFL– CIO. Cases 34–CA–012715, 34–CA–012732, 34– CA–012765, 34–CA–012766, 34–CA–012767, 34– CA–012768, 34–CA–012769, 34–CA–012770, and 34–CA–012771
February 22, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On August 1, 2012, Administrative Law Judge Steven Fish issued the attached decision. The Respondents filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondents filed a reply brief. In addition, the General Counsel filed a limited cross-exception and a supporting brief, and the Respondents filed an answering brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified below, to amend the judge’s remedy,3 and to adopt the recommended Order as modified and set forth in full below.4
1 We grant the Respondents’ unopposed motion to remove “Care Realty, LLC a/k/a Care One” from the caption. The parties stipulated to the withdrawal of Care Realty as a respondent in this case, and the judge orally granted the withdrawal during the hearing.
2 The Respondents have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s 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 In the remedy section of his decision, the judge stated that backpay for employees affected by the Respondents’ unfair labor practices shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950). F.W. Woolworth provides the correct method for computing
This case involves six Connecticut skilled-nursing centers—Danbury Health Care Center (Danbury), Newington Health Care Center (Newington), Long Ridge of Stamford (Long Ridge), West River Health Care Center (West River), Westport Health Care Center (Westport), and Wethersfield Health Care Center (Wethersfield)— and their management company, HealthBridge Management, LLC (HealthBridge), which jointly employs the centers’ employees. The judge found that the Respondents violated Section 8(a)(1) and (5) of the Act on a number of occasions during 2010.
As explained further below, we affirm the judge’s findings that HealthBridge and Westport violated Section 8(a)(1) by threatening to call the police at a May 17, 2010 meeting when employees protested against the Respondents’ announcement that they would have to reapply for employment in order to retain their positions and that they would lose all their preexisting seniority. We also affirm the judge’s finding that HealthBridge, Newington, Long Ridge, and Westport modified their collective-bargaining agreements in violation of Section
backpay for employees Myrna Harrison and Newton Daye, whom Respondents HealthBridge Management, LLC and Westport Health Care Center unlawfully refused to reemploy, and for the employees whom the Respondents laid off at Long Ridge without complying with the contractually required 45-day notice period. (For the Long Ridge employees laid off with insufficient notice, we will include a backpay requirement of 45 days minus the number of days’ notice the employees were given of their layoff, plus reimbursement for any expenses ensuing from the unlawful layoff, as set forth in Kraft Plumbing & Heating, Inc., 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).) However, the rest of the Respondents’ unfair labor practices that resulted in loss of pay did not involve cessation of employment. For example, Respondents HealthBridge and Long Ridge of Stamford unlawfully removed some employees from the work schedule for up to 3 days a week, and all of the Respondents unlawfully reduced employees’ wages and benefits. In making employees whole for violations that did not involve cessation of employment or interim earnings that would, in the course of time, reduce backpay, the correct backpaycomputation method is that set forth in Ogle Protection Service, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). See, e.g., Raven Government Services, Inc., 336 NLRB 991, 992 (2001), enfd. 315 F.3d 499 (5th Cir. 2002). Under both backpay-computation methods, interest shall be computed at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
4 We shall amend the judge’s conclusions of law in accordance with our findings herein. We shall modify the judge’s recommended Order to conform to our findings and the Board’s standard remedial language, to correct certain inadvertent omissions, and in accordance with our decisions in Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014), AdvoServ of New Jersey, 363 NLRB No. 143 (2016), and Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute new notices to conform to the Order as modified and in accordance with our decision in Durham School Services, 360 NLRB 694 (2014).
For the reasons explained below, we grant the General Counsel’s request to require the Respondents to read the remedial notices aloud to their employees.
365 NLRB No. 37
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(5) and (1) when, after temporarily requiring the housekeeping and laundry employees at those three centers to work under a subcontractor, they “rehired” those employees as new or probationary employees, thereby divesting them of their seniority and related benefits.5
Finally, we adopt the judge’s findings that the Respondents violated Section 8(a)(5) and (1) by unilaterally changing their practice of paying all employees time and a half for hours worked on certain holidays; and by unilaterally changing their practice of counting paid halfhour lunch periods toward hours worked in a given day when calculating daily overtime.6
Background. At each of the skilled-nursing centers, the Union has represented a bargaining unit of service and maintenance employees since the early 1990s. These units include certified nursing assistants, cooks, central supply clerks, and housekeeping and laundry employees. The Union entered into separate collective-bargaining agreements with each center that were effective from December 31, 2004, to March 16, 2011 (the “2004–2011 CBAs” or “CBAs”). For purposes of this case, the CBAs were virtually identical. Each CBA barred the subcontracting of unit work or the sale of the center’s operations unless the subcontractor or successor agreed to retain the unit employees and assume all the terms of the CBA.7 In the event of layoff, each CBA required the Respondents to give 45 days’ notice to the Union, established recall
5 For this finding, we rely only in part on the judge’s analysis (see Part B.4).
6 We also agree with the judge, for the reasons stated in his decision, that Respondents HealthBridge and Long Ridge violated Sec. 8(a)(5) and (1) by modifying the collective-bargaining agreement without the Union’s consent when they failed to give 45 days’ notice of the February-March 2010 layoff of certified nursing assistants, and by unreasonably delaying their response to the Union’s information requests related to the layoff. In addition, we adopt the judge’s finding that Respondents HealthBridge, Danbury, and Wethersfield violated Sec. 8(a)(5) and
(1) by modifying the collective-bargaining agreements without the Union’s consent by calculating benefit eligibility for part-time employees based on hours these employees were guaranteed to be scheduled each week instead of the hours that employees worked. Because we agree that this was an unlawful contract modification, we find it unnecessary to pass on the judge’s additional finding that the changes to benefit eligibility also constituted unlawful unilateral changes of a past practice.
7 Article 9(F) dealt specifically with “[s]ubcontracting,” stating that “[n]o bargaining unit work shall be subcontracted unless the subcontractor agrees in advance to retain the Employees and recognize all their rights, including seniority, under this agreement” (emphasis added). Article 38 (or 39, depending on the particular CBA) bound “all sublessees, assignees, purchasers or other successors . . . to such terms and provisions, to which the Employees are and shall be entitled under this Agreement,” and obligated the employer to require “any purchaser, transferee, lessee [or] assigns . . . of the operation covered by this Agreement to accept the terms of this Agreement by written notice.”
rights by seniority, and protected all accrued seniority rights of employees who were laid off for 2 years (or for the length of seniority if less than 2 years).8
The 2006–2009 “Supervisor-Only” Contracts. In 2006, HealthBridge, on behalf of all six centers, contracted with Healthcare Services Group (HSG)9 to supervise...
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