Renal Care of Buffalo, Inc., 1284 (2006)

Renal Care of Buffalo, Inc. and Communication Workers of America, Local 1168. Cases 3–CA–24947, 3–CA–25054, 3–CA–25145, and 3–CA–25223

August 31, 2006

DECISION AND ORDER

By Members Schaumber, Kirsanow, and Walsh

On October 3, 2005, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answer, and the Respondent filed a reply. The General Counsel filed exceptions and a supporting brief, the Respondent filed an answer, and the General Counsel filed a reply.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The 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,1 and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modified and set forth in full below.2

We adopt the judge’s finding that the Respondent violated Section 8(a)(1) by removing a protected union document from the designated union bulletin board, and by threatening reprisals if the document were reposted. We further adopt the judge’s recommended dismissal of allegations that the Respondent engaged in direct dealing and surface bargaining, and that the Respondent repudiated the contract as to work schedules for bargaining unit employees on the negotiating team. Finally, we adopt the judge’s finding that the Respondent’s allegedly unlawful conduct did not cause employees to request decertification of the Union. As explained in further detail below, we reverse the judge and find that the Respondent lawfully withdrew recognition from the Union on September 10, 2004.3 As a result, the General Counsel’s remaining allegations involving the Respondent’s conduct after it withdrew recognition, and the parties’ remaining exceptions to the judge’s decision, are dismissed or rendered moot.

i. introduction4

Renal Care of Buffalo (RCB) is a privately owned dialysis center in Buffalo, New York. During the relevant period, RCB had a service contract with Total Renal Care (TRC) for training, management, and operations. TRC, a subsidiary of DaVita Corporation (DaVita), a national dialysis service provider, operates several facilities in New York, including RCB. Cleve Hill, a separate dialysis center in Buffalo, was operated by Erie County Medical Center (ECMC). During the relevant period, TRC was in the process of acquiring Cleve Hill’s operating license from ECMC. In late July 2004, in anticipation of the Cleve Hill acquisition, TRC hired two nurses, Deborah Reger and Lynne Yung, who the Respondent asserted were to train at RCB and move to Cleve Hill when the license transfer was final.

The Union had been the exclusive collective-bargain-ing representative for the relevant unit at RCB since 1996. The collective-bargaining agreement at issue was in effect from July 2, 2001, to July 2, 2004. The parties agreed, during negotiations for a successor contract, to extend the agreement until August 2, 2004.

The parties began negotiations for a new contract in May 2004. On August 17, several bargaining unit employees requested a meeting with DaVita officials to voice their concerns that the Union was not listening to them or representing their needs. On September 3, the employees submitted a petition to the Respondent with 15 signatures stating that the undersigned employees did not support the Union and were in favor of withdrawing recognition. On September 10, relying on the decertification petition, the Respondent withdrew recognition.

ii. discussion

1. Withdrawal of Recognition

   In Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), the Board held that an employer must show a union’s actual loss of majority support in order to lawfully withdraw recognition. In this case, the employer’s withdrawal of recognition was lawful if the 15 signatures on the decertification petition, which were not disputed, represented at least 50 percent of the bargaining unit. The determining factor, therefore, is the number of unit employees at the time of withdrawal.

   The Respondent determined that there were 30 employees in the bargaining unit at the time and, relying on the petition’s 15 signatures, withdrew recognition from the Union on September 10. The General Counsel, however, contends that there were 32 employees, and thus the 15 signatures did not represent at least 50 percent of the unit. The two employees at issue are nurses Reger and Yung.

   On or about July 29, the Respondent hired Reger, a licensed practical nurse (LPN), to begin work on August 16. Reger testified that she was told during her interview that she was hired to work at Cleve Hill, but she would be trained at RCB and work there until the Cleve Hill operating license was transferred to TRC, at which time she would become a permanent employee at Cleve Hill.5 The judge accepted the Respondent’s claim that Reger was hired to work at Cleve Hill, and he thus found that Reger was not an employee at RCB for the purposes of collective bargaining and was not in the bargaining unit when the Respondent withdrew recognition. We agree.

   At the end of July, about the same time Reger was hired, Yung interviewed for and was offered a full-time position with TRC as a registered nurse (RN) starting on August 3.6 Like Reger, Yung testified that she was told that she would be trained at RCB, but she would work at Cleve Hill.7 The judge also noted that Yung’s job application stated “hired @ $22.15 as a full-time RN @ RCB to move over later.”8 Despite these facts, the judge found that Yung, unlike Reger, was an employee at RCB and thus was in the bargaining unit when the Respondent withdrew recognition.9

   We find that the judge erred by holding that Yung was in the bargaining unit, especially after finding, on remarkably similar evidence, that Reger was not.10 In addition to the facts stated above, the undisputed evidence shows that both Reger and Yung were on different wage scales from employees in the bargaining unit, and both were offered substantially identical benefits that were different from those provided under the collective-bargaining agreement, including bonuses and profit sharing, paid time off accrual, jury duty and bereavement leave, seniority, and layoff and recall rights.11 Neither Reger nor Yung was required to pay union dues. Moreover, RCB employees Carrie Kropidlowski and Julie Galatioto testified that they understood that Reger and Yung were hired to work at Cleve Hill, and thus they did not ask them to sign the decertification petition. In short, the evidence shows that neither Reger nor Yung was ever considered by the Respondent, the Union, or unit members as an employee of RCB or as a member of the bargaining unit.12 We therefore adopt the judge’s finding as to Reger but reverse as to Yung and find that Reger and Yung were not in the unit when the Respondent withdrew recognition on September 10.

   As a result of this finding, we necessarily find that there were 30 employees in the bargaining unit on September 10 when the Respondent withdrew recognition, and thus the 15 signatures on the decertification petition provided the Respondent with the necessary proof that the Union had actually lost majority support.13 The withdrawal of recognition, therefore, was lawful.14

2. The General Counsel’s Remaining Allegations

   In light of our finding that the Respondent lawfully withdrew recognition from the Union on September 10, we dismiss the following allegations.

   1. The judge found that the Respondent repudiated the contract by denying employee Sherry Jakubowski bereavement leave on January 11, 2005. The contract was no longer in effect on January 11, 2005, and thus the Respondent did not repudiate it. This allegation is therefore dismissed. Moreover, because we find that Jakubowski’s discharge for abusing leave was lawful, the Respondent’s exception to the appropriateness of the recommended remedy is moot.

   2. The judge found that the Respondent unlawfully refused to furnish the Union with requested information during bargaining. On August 9, the Union requested certain information from the Respondent that it alleged was relevant to the contract negotiations.15 The Respondent asked the Union to explain why the information was relevant, and the Union responded on August 23. The Respondent withdrew recognition 18 days later on September 10.

      Following the lawful withdrawal of recognition, the Respondent no longer had a duty to provide the Union with the requested information. Thus, the only violation that could be found here involves the Respondent’s failure to provide the requested information for the 18 days prior to the withdrawal of recognition.16 Under the circumstances, we do not find that the Respondent’s failure to provide the information in the 18 days between the Union’s response and the withdrawal of recognition constitutes an unlawful refusal. Thus, the allegation is dismissed.

      ORDER

      The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Renal Care of Buffalo, Inc., West Seneca, New York, its officers, agents, successors, and assigns, shall

   1. Cease and desist from

      (a) Removing printed communication protected by the Act from the designated union bulletin board and threatening employees with discipline if the printed communication is re-posted.

      (b) In any like or related manner interfering with, restraining, 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) Within 14 days after service by the Region, post at its facility in West Seneca, New York, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director...