Regal Health and Rehab Center, Inc., (2009)
Regal Health and Rehab Center, Inc. and Service Employees International Union Healthcare, Local 4. Cases 13CA44481, 13CA44482, and 13CA44619August 28, 2009 DECISION AND ORDER By Chairman Liebman and Member Schaumber On October 6, 2008, Administrative Law Judge Margaret G. Brakebusch issued the attached decision. The Respondent filed exceptions and the Charging Party and the General Counsel filed answering briefs. The Charging Party filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Charging Party filed a reply 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 judges rulings, findings, and conclusions as modified and to adopt the recommended Order. We adopt the judges findings that the Respondent violated Section 8(a)(1) when its director of nursing, Durodola Adewolu, threatened employees with job loss and unspecified reprisals for engaging in union activities, promised employees a reward for surveillance of other employees concerted activities, created the impression that employees union activities were under surveillance, interrogated employees concerning their union sympathies and activities, threatened to blackball employees for engaging in union activities, and threatened employees with the futility of their selection of the Union. We agree with the judge that the Respondent violated Section 8(a)(3) and (1) by discharging Licensed Practical Nurses (LPNs) Lavern Harper, Dianne Rounds, and Michael Thurmond. We also adopt the judges finding that the Respondent did not violate Section 8(a)(3) and (1) by disciplining and discharging LPN Kalea Williams. Finally, we agree with the judges recommendation that the Respondent be ordered to bargain with the Union pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In recommending a Gissel bargaining order, the judge relied on the numerous 8(a)(1) violations committed by Adewolu and the unlawful discharges of Harper, Rounds, and Thurmond. We rely on these violations, as well as on the judges finding that the Respondent unlawfully altered LPN job duties. The Respondent began this unlawful alteration only days after learning of the Unions first organizational meeting. This unlawful attempt to destroy the bargaining unit and remove the LPNs from the Acts protection clearly had a tendency to undermine the majority strength and impede the election processes. Id. at 614; see also Regency Manor Nursing Home, 275 NLRB 1261, 1261 (1985) (Board issued Gissel bargaining order where, inter alia, respondent unlawfully coerced employees into accepting supervisory positions in a scheme to undermine union support among employees and to interfere with the employees right to vote in the Board-conducted election.). For this reason, in combination with those the judge discussed, we find that a Gissel bargaining order is warranted in this case. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Regal Health and Rehab Center, Inc., Oak Lawn, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Dated, Washington, D.C. August 28, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (seal) National Labor Relations Board Sylvia L. Taylor, Esq., for the General Counsel. Michael Lerner, President, pro se, for the Respondent. Margaret A. Angelucci, Esq., for the Charging Party. DECISION Statement of the Case Margaret G. Brakebusch, Administrative Law Judge. This case was tried in Chicago, Illinois, on May 27 through May 30, 2008, and on June 25 and 26, 2008. The charge in Case 13CA44481 was filed by the Service Employees International Union Healthcare, Local 4 (the Union) on January 8, 2008. The charge in Case 13CA44482 was filed by the Union on January 8, 2008, and amended on February 25, 2008. The charge in Case 13CA44619 was filed by the Union on March 27, 2008, and amended on March 28 and on May 5, 2008. On May 5, 2008, the Regional Director for Region 13 of the National Labor Relations Board (the Board) issued a second order consolidating cases, consolidated complaint and notice of hearing based upon the allegations contained in Cases 13CA44481, 13CA44482, and 13CA44619. The consolidated complaint alleges that Respondent issued a disciplinary writeup to employee Kalea Williams on March 20, 2008. The consolidated complaint further alleges that on various dates in January and March 2008, Respondent terminated employees Lavern Harper, Diane Rounds, Michael Thurmond, and Kalea Williams because of their support for, and assistance to, the Union in violation of Section 8(a)(3) of the Act. The consolidated complaint also alleges that Respondent further violated Section 8(a)(3) by altering the working conditions of its employees in mid-December 2007 and about December 20, 2007. Finally, the consolidated complaint alleges that on various dates between November 2007 and January 2008, Respondents director of nursing, Durodola Adewolu, engaged in 17 independent violations of Section 8(a)(1) of the Act. The General Counsel further alleges that a majority of Respondents full-time and regular part-time licensed practice nurses (LPNs) designated and selected the Union as their collective-bargaining representative on or about November 18, 2007. The General Counsel seeks a bargaining order as a part of the remedy for Respondents alleged unfair labor practices. On the entire record,1 including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Union, and Respondent, I make the following Findings of Fact i. jurisdiction Respondent, an Illinois corporation, with an office and place of business in Oak Lawn, Illinois, has been engaged in the business of providing skilled nursing care. During the past 12 months, Respondent purchased and received goods, products, materials, and/or services valued in excess of $3000 from other enterprises including public utilities located within the State of Illinois, each of which public utility had received the goods, products, materials, and/or services directly from points outside the State of Illinois. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. ii. alleged unfair labor practices A. Issues 1. Whether the licensed practical nurses employed at Respondents facility are supervisors within the meaning of Section 2(11) of the Act? 2. Whether Respondent, acting through its director of nursing, engaged in multiple violations of 8(a)(1) of the Act as alleged in the complaint? 3. Whether Respondent issued a verbal warning to employee Kalea Williams in violation of Section 8(a)(3) and (1) of the Act? 4. Whether Respondent terminated the employment of employees Lavern Harper, Diane Rounds, Michael Thurmond, and Kalea Williams in violation of Section 8(a)(3) and (1) of the Act? 5. Whether a Gissel bargaining order is warranted? B. Respondents Facility and Operation Respondent operates a long-term healthcare facility in Oak Lawn, Illinois. Healthcare to patients is primarily administered by licensed practical nurses (LPNs) and certified nursing assistants (CNAs). The facility is composed of two floors providing full-time health care to approximately 90 to 95 patients. There are usually 40 to 45 patients on the second floor who require more skilled nursing care. There are approximately 50 patients on the first floor who require less skilled care. For purposes of this decision, the individuals who receive nursing care at the facility are referenced to as either patients or residents. There are three scheduled shifts for employees: 7 a.m. to 3 p.m., 3 to 11 p.m., and 11 p.m. to 7 a.m. The LPNs provide nursing care to the patients, administer medications, and are responsible for completing the requisite nursing care documentation. The CNAs are responsible for assisting patients with activities of daily living; such as turning, bathing, clothing, and feeding. The CNAs also check the patients vital signs and report any changes in the residents condition to the LPN on duty. For each shift, there is one LPN on the first floor and two LPNs on the second floor. There are normally three CNAs assigned to the second floor and two CNAs assigned to the first floor. The Union represents 80 percent of Respondents employees. The Union represents not only the CNAs, but also the employees in housekeeping, laundry, and dietary. CNA Jeraldine Cheatem (Cheatem) is a union steward for the bargaining unit. The LPNs are essentially the only group of employees at Respondents facility, who were not represented by the Union prior to November, 2007. Michael Learner is not only the owner, but also the administrator of the facility. He appeared as pro se representative for the Respondent during the hearing. Deborah Kipp is director of operations and Sanuelle Williams is assistant administrator. During the period in issue, the LPNs were directly supervised by Respondents director of nursing (DON), Durodola Adewolu (Adewolu). Adewolu came to the United States from Nigeria and he assumed the position of DON at Respondents facility in August 2007. Adewolu is the direct supervisor for the LPNs and he prepares their monthly work schedule. In November 2007, there were 13 LPNs. Rhonda White has been the quality assurance nurse since October 25, 2007. White...
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