New Link, Ltd.,

343 NLRB No. 118 New Link, Ltd., Cherlayne, Inc., Inn Site, Inc., Forrer Community Living Ctr., Inc., and Lafayette Special Care Ctr., Inc. and Council 25, Ameri- can Federation of State, County and Municipal Employees, AFL–CIO. Case 7–CA–47639 December 16, 2004 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH The General Counsel seeks a default judgment in this case on the ground that the Respondent has failed to file an answer to the complaint. Upon a charge filed by the Union on July 1, 2004, the General Counsel issued the complaint on September 1, 2004, against New Link, Ltd., Cherlayne, Inc., Inn Site, Inc., Forrer Community Living Ctr., Inc., and Lafayette Special Care Ctr., Inc., collec- tively referred to as the Respondent, alleging that it has violated Section 8(a)(1), (3), and (5) of the Act. The Respondent failed to file an answer. On November 9, 2004, the General Counsel filed a Motion for Default Judgment with the Board. On No- vember 16, 2004, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Default Judgment Section 102.20 of the Board’s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. In addition, the complaint affirmatively stated that unless an answer was filed by September 15, 2004, all the allegations in the complaint would be considered admitted. Further, the undisputed allegations in the Gen- eral Counsel’s motion disclose that the Region, by letter dated September 30, 2004, notified the Respondent that unless an answer was received by October 7, 2004, a motion for default judgment would be filed. By letter dated October 7, 2004, the Respondent re- quested an extension of time to file an answer. On Octo- ber 15, 2004, the Regional Director issued an Order Ex- tending Time to file an Answer to October 21, 2004. Nevertheless, the Respondent has failed to file an an- swer. In the absence of good cause being shown for the fail- ure to file a timely answer, we grant the General Coun- sel’s motion for default judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, with facilities in Detroit, Michigan, and Lincoln Park, Michigan, has been engaged in the management and operation of adult foster care homes. The Respondent’s New Link, Ltd. facility, herein also called the New Link facility, is located at 14531 Vaughn, Detroit, Michigan. The New Link facil- ity is the only facility involved in this proceeding. During calendar year 2003, the Respondent, in con- ducting its operations described above, had gross revenue in excess of $100,000, and purchased goods and materi- als valued in excess of $5000 and caused said goods and materials to be shipped from points located outside the State of Michigan directly to its Michigan facilities. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Council 25, American Federation of State, County and Municipal Employees, AFL–CIO, the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, the following individuals held the positions set forth opposite their names and have been supervisors of the Respondent within the meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: CeDel Murff Owner Diane Brown Office Manager Barbara McGresham Human Resource Manager The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time direct care workers employed by the Respondent at its facilities located at New Link, Ltd., 14531 Vaughn, Detroit, Michigan, Cherlayne, Inc., 305 E. Grand Boulevard, Detroit, Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi- gan, Forrer Community Living Center, Inc., 19950 For- rer, Detroit, Michigan, and Lafayette Special Care Cen- ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but excluding guards and supervisors as defined in the Act. On March 8, 2004, in Case 7–RC–22601, the National Labor Relations Board certified the Union as the exclu- sive collective-bargaining representative of the unit. At all times since March 8, 2004, based on Section 9(a) of the Act, the Union has been the exclusive collec- tive-bargaining representative of the unit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 On June 21, 2004, the Respondent, at the New Link facility, through its agent, Barbara McGresham, coer- cively induced employees to withdraw currently pending unfair labor practice charges filed against the Respondent with the Board and accept a change in shift or face dis- charge. The Respondent, at the New Link facility, through its agent, CeDel Murff, changed the job duties of employee Catherine King by the following conduct: (a) in about late March 2004, by eliminating her driving responsibilities; (b) in about early April 2004, by removing her as medication coordinator and reducing her wages by 10 cents an hour. The Respondent engaged in the conduct described above because Catherine King engaged in activities on behalf of and in support of the Union, and to discourage employees from engaging in these and other concerted protected activities. On about June 21, 2004, the Respondent, by its agent Barbara McGresham, at the New Link facility, bypassed the Union and dealt directly with employees in the unit by encouraging employees to accept a change from day to afternoon shift. The Respondent implemented changes in Catherine King’s job duties, title, and wages, and dealt directly with employees regarding changes in their shifts, without prior notice to the Union and without affording the Un- ion an opportunity to bargain with the Respondent with respect to this conduct and the effects of this conduct on the unit. The subjects set forth above relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. On June 22, 2004, the Union, by letter, requested that the Respondent furnish it with information regarding medical certification submitted by, medical complica- tions, medical errors committed by, and any recipient rights complaints involving the work performance of Catherine King, and a list of all dates and times that re- cipient rights came into the New Link facility in the pre- vious 18 months, and the results of such visits. The information requested by the Union, as described above, is necessary for, and relevant to, the Union’s per- formance of its duties as the exclusive bargaining repre- sentative of the unit. Since June 22, 2004, the Respondent has failed and re- fused to provide the Union with the requested informa- tion described above. CONCLUSIONS OF LAW 1. By coercively inducing employees to withdraw un- fair labor practice charges filed with the Board and by informing them that they must accept a change in shift or face discharge, the Respondent has interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby violated Section 8(a)(1) of the Act. 2. By changing the job duties, title, and rate of pay of employee Catherine King, the Respondent has discrimi- nated in regard to the hire or tenure or terms and condi- tions of employment of its employees, thereby discourag- ing membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act. 3. Further, the Respondent has failed and refused to bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of its employees, in violation of Section 8(a)(5) and (1) of the Act, by implementing changes in Catherine King’s job duties, title, and rate of pay, without providing the Union with notice and an opportunity to bargain; by bypassing the Union and dealing directly with employees by en- couraging them to accept changes in their shifts; and by failing and refusing to provide the Union with informa- tion that is necessary for, and relevant to, the Union’s role as the exclusive collective-bargaining representative of the unit. The Respondent’s unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(3), (5), and (1) of the Act by unilaterally changing Catherine King’s job duties, title, and rate of pay, we shall order the Respondent to restore her to her previous wage rate and job duties and former position of medication coordinator or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and to make her whole for any loss of earnings and other bene- fits she suffered as a result of the discrimination against her. Backpay shall be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also be required to remove from its files all references to the changes in Catherine NEW LINK, LTD. 3 King’s job duties, title, and rate of pay, and to notify her in writing that this has been done and the changes will not be used against her in any way. In addition, we shall require the Respondent to furnish the Union with the information it requested on June 22, 2004. ORDER The National Labor Relations Board orders that the Respondent, New Link, Ltd., Cherlayne, Inc., Inn Site, Inc., Forrer Community Living Ctr., Inc., and Lafayette Special Care Ctr., Inc., Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively inducing employees to withdraw unfair labor practice charges filed with the Board and accept a change in shift or face discharge. (b) Changing employees’ wages, hours, or other terms and conditions of employment, or otherwise discriminat- ing against employees, because they support Council 25, American Federation of State, County and Municipal Employees, AFL–CIO, or any other labor organization, and engage in protected concerted activities, or to dis- courage employees from engaging in such activities. (c) Failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following appropriate unit, by unilaterally changing employees’ wages, hours, or other terms and conditions of employment, without providing the Union with notice and an opportunity to bargain. The appropri- ate unit is: All full-time and regular part-time direct care workers employed by the Respondent at its facilities located at New Link, Ltd., 14531 Vaughn, Detroit, Michigan, Cherlayne, Inc., 305 E. Grand Boulevard, Detroit, Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi- gan, Forrer Community Living Center, Inc., 19950 For- rer, Detroit, Michigan, and Lafayette Special Care Cen- ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but excluding guards and supervisors as defined in the Act. (d) Bypassing the Union and dealing directly with unit employees regarding wages, hours, or other terms and conditions of employment. (e) Failing and refusing to provide the Union with in- formation that is necessary for, and relevant to, the Un- ion’s performance of its duties as the exclusive bargain- ing representative of the unit. (f) In any like or related manner interfering with, re- straining, 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 from the date of this Order, restore Catherine King to her previous wage rate and job duties and to her former position as medication coordinator or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Catherine King whole for any loss of earn- ings and other benefits suffered as a result of the unlaw- ful changes in her job duties, title, and rate of pay, with interest, in the manner set forth in the remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any and all references to the unlawful changes in Catherine King’s job duties, title, and rate of pay, and within 3 days thereafter, notify her in writing that this has been done, and that the unlawful changes will not be used against her in any way. (d) Furnish the Union with the information it requested on June 22, 2004. (e) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit set forth above. (f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its New Link facility in Detroit, Michigan, copies of the attached notice marked “Appendix.”1 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 7, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 2004. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT coercively induce employees to with- draw unfair labor practice charges filed with the Board and accept a change in shift or face discharge. WE WILL NOT change employees’ wages, hours, or other terms and conditions of employment, or otherwise discriminate against employees, because they support Council 25, American Federation of State, County and Municipal Employees, AFL–CIO, or any other labor organization, and engage in protected concerted activi- ties, or to discourage employees from engaging in such activities. WE WILL NOT fail and refuse to bargain with the Union as the exclusive collective-bargaining representative of employees in the following appropriate unit, by unilater- ally changing employees’ wages, hours, or other terms and conditions of employment, without providing the Union with notice and an opportunity to bargain. The appropriate unit is: All full-time and regular part-time direct care workers employed by the Respondent at its facilities located at New Link, Ltd., 14531 Vaughn, Detroit, Michigan, Cherlayne, Inc., 305 E. Grand Boulevard, Detroit, Michigan, Inn Site, Inc., 6821 Sarena, Detroit, Michi- gan, Forrer Community Living Center, Inc., 19950 For- rer, Detroit, Michigan, and Lafayette Special Care Cen- ter, Inc., 1256 Lafayette, Lincoln Park, Michigan; but excluding guards and supervisors as defined in the Act. WE WILL NOT bypass the Union and deal directly with employees regarding wages, hours, or other terms and conditions of employment. WE WILL NOT fail and refuse to furnish the Union with information that is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collec- tive-bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, restore Catherine King to her previous wage rate and job duties and to her former position as medication coordinator or, if that position no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or any other rights or privileges previously en- joyed. WE WILL make Catherine King whole for any loss of earnings and other benefits suffered as a result of the unlawful changes in her job duties, title, and rate of pay, with interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful changes in Catherine King’s job duties, title, and rate of pay, and within 3 days thereafter, notify her in writing that this has been done and that the unlawful changes will not be used against her in any way. WE WILL furnish the Union with the information it re- quested on June 22, 2004. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of the employees in the unit set forth above. NEW LINK, LTD., CHERLAYNE, INC., INN SITE, INC., FORRER COMMUNITY LIVING CTR., INC., AND LAFAYETTE SPECIAL CARE CTR., INC.