SPRAIN BROOK MANOR REHAB, LLC, PINNACLE DIETARY INC., AND COMMERCIAL BUILDING MAINTENANCE CORP.,

Docket Number02-CA-089480

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.

Sprain Brook Manor Rehab, LLC, Pinnacle Dietary Inc., Budget Services Inc., and Commercial Building Maintenance Corp. and 1199 SEIU United Healthcare Workers East and Local 713, International Brotherhood of Trade Unions

Local 713, International Brotherhood of Trade Unions and 1199 SEIU United Healthcare Workers East. Cases 02–CA–089480, 02–CA–142506, 02– CB–095670, and 02–CB–146895

March 21, 2017

DECISION AND ORDER

BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On April 29, 2016, Administrative Law Judge Kenneth

W. Chu issued the attached decision. The General Counsel filed limited exceptions.

The National Labor Relations Board has considered the decision and the record in light of the exceptions1 and has decided to affirm the judge’s rulings, findings, and

1 The General Counsel filed exceptions “for the limited purpose of correcting certain errors, omissions, and internal inconsistencies” in the judge’s decision. No party filed an opposition. Accordingly, we make the following corrections to the judge’s summary of the procedural history: (1) Budget Services Inc. was added as a Respondent in this proceeding by the amended charge dated November 26, 2012; (2) the record supports that both testimony and documentary evidence produced pursuant to subpoena established meritorious allegations against Budget; and (3) the third amended consolidated complaint (GC Exh. 2G) is the controlling pleading in this case. We also add Budget Services Inc. to the joint employers named at Sec. VIII, (b) of the judge’s decision to accurately reflect the complaint allegation.

No exceptions were filed to any of the judge’s findings on the merits of the complaint allegations, including his findings with regard to the Respondent Employers’ successor or joint-employer status; violations of Sec. 8(a)(5) and (1) for unilaterally subcontracting unit work, unilaterally changing unit employees’ terms and conditions of employment, or unilaterally changing the union access policy; violations of Sec. 8(a)(3) and (1) for subcontracting unit work with retaliatory, anti-union motive or discharging key union supporters, including Alvin Nicholson, Vernon Warren, and Clarisse Nogueria; and violations of Sec. 8(a)(2) and (1) for granting assistance to or recognizing the Respondent Union, IBOTU 713, as the unit employees’ exclusive collective-bargaining representative, applying the terms of their agreement, including the union security provision, when IBOTU 713 did not represent an unassisted and uncoerced majority of unit employees, or discharging unit employees who refused to sign IBOTU 713 union cards. Further, no exceptions were filed to the judge’s finding that the Respondent Union violated Sec. 8(b)(1)(A) by accepting recognition from the employers when it did not have majority support and by applying the provisions of their agreement, including the union security clause, to collect dues from nonmember unit employees.

conclusions and to adopt the recommended Order as modified and set forth in full below.2

AMENDED CONCLUSIONS OF LAW

Substitute the following for Conclusions of Law 3 and

  1. “3. The Union 1199 SEIU is, and at all material times

    has been, the exclusive joint bargaining representative for the following appropriate unit:

    All full-time and regular part-time and per-diem nonprofessional employees including licensed practical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laundry employees/assistants, dietary aides, and cooks employed by the

    2 In addition to the remedies recommended by the judge and consistent with his findings and the Board’s standard remedies, we shall order Respondents Sprain Brook, Pinnacle, and Budget to cease and desist from discharging or otherwise discriminating against unit employees for supporting the Charging Party Union 1199 SEIU or any other labor organization, and from discriminating against unit employees with respect to hire or tenure of employment in order to encourage membership in the Respondent Union. We shall also order the Respondents Sprain Brook, Pinnacle, and Budget to make Alvin Nicholson and Vernon Warren whole for any loss of earnings and other benefits suffered as a result of unlawful discrimination against them.

    Further, backpay amounts Respondent Sprain Brook is required to pay for any loss of earnings and other benefits suffered as a result of unilateral changes in terms and conditions of employment after unit employees were hired by Respondents Pinnacle, Budget, and nonparty Confidence are to be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971)— not, as the judge indicated, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). See, e.g., Pepsi America, Inc., 339 NLRB 986, 986 fn. 2 (2003).

    With respect to the reporting requirement for allocation of backpay, we do not rely on the judge’s citation to Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). Instead, we rely on AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), which the judge properly applied in his recommended Order.

    In accordance with our recent decision in King Soopers, Inc., 364 NLRB No. 93 (2016), we shall also order Respondents Sprain Brook, Budget, and Pinnacle to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings. Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). For the reasons stated in his separate opinion in King Soopers, supra, slip op. at 12–16, Acting Chairman Miscimarra would adhere to the Board’s former approach, treating search-for-work and interim employment expenses as an offset against interim earnings.

    We shall modify the Order to conform to the judge’s findings and to the Board’s standard remedial language and substitute new notices to conform to the Order as modified.

    Lastly, given that the judge did not enumerate each Conclusion of Law, we have inserted standard numbering to each separate conclusion. Our modification in this regard has no effect on our disposition of this case.

    365 NLRB No. 45

    2

    employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but excluding all other employees, including office clerical employees, managers and guards, professional employees and supervisors as defined by the Act.”

    “20. Respondents Sprain Brook, Pinnacle, and Budget, jointly and severally, violated Section 8(a)(3) and (1) of the Act by discharging Vernon Warren and Alvin Nicholson because of their union activities.”

    Insert the following as Conclusions of Law 12 and 14 and renumber the subsequent paragraphs accordingly.

    “12. Respondent Sprain Brook violated Section 8(a)(3) and (1) of the Act by subcontracting the work of the unit employees to Pinnacle, Budget, CBM, and nonparty Confidence.”

    “14. The Respondents Sprain Brook and Budget, jointly and severally, violated Section 8(a)(5) and (1) of the Act by unilaterally altering the nursing unit employees’ terms and conditions of employment.”

    ORDER

    A. Respondent Sprain Brook, as a successor to Sprain Brook Manor Nursing Home, LLC, Scarsdale, New York, its officers, agents, successors, and assigns, shall

  2. Cease and desist from

    (a) Failing and refusing to bargain with 1199 SEIU United Healthcare Workers East (1199 SEIU) as the exclusive collective-bargaining representative of the employees in the bargaining unit.

    (b) Withdrawing recognition from 1199 SEIU as the exclusive collective-bargaining representative of unit employees.

    (c) Granting assistance to Local 713, International Brotherhood of Trade Unions (Local 713 IBOTU) and recognizing it as the exclusive collective-bargaining representative of the unit employees at a time when Local 713 IBOTU did not represent an unassisted and uncoerced majority of the employees in the unit.

    (d) Applying the terms and conditions of employment of the collective-bargaining agreement between Respondent Budget and Local 713 IBOTU (Budget-Local 713 Agreement), or any extensions, renewals, or modifications of that agreement, including its union-security provisions, to the unit employees at a time when Local 713 IBOTU did not represent an unassisted and uncoerced majority of the employees in the unit.

    (e) Unilaterally discharging unit employees and subcontracting their work to Respondents Budget, Pinnacle, and Confidence without first notifying 1199 SEIU and giving it a meaningful opportunity to bargain regarding the decision to discharge unit employees or subcontract unit work.

    (f) Subcontracting unit work for retaliatory motive because employees engaged in union activity.

    (g) Changing the terms and conditions of employment of the unit employees without first notifying 1199 SEIU and giving it an opportunity to bargain.

    (h) Discriminating against unit employees in regard to their hire or tenure of employment in order to encourage membership in Local 713 IBOTU.

    (i) Threatening to discharge, discharging, or taking any discipline against unit employees for engaging in union or other protected concerted activities.

    (j) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  3. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Withdraw and withhold all recognition from Local 713 IBOTU as the exclusive...

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