Marquette Manor

249 306 NLRB No. 47 MARQUETTE MANOR 1 On August 22, 1991, the Union filed the charge in Case 14–CA– 21580 alleging, inter alia, that the Respondent had failed and refused to comply with the settlement agreement on which the conditional withdrawal of the charge was based. 2 In light of the Respondent’s factual admissions, we agree with the General Counsel that the Respondent’s denial of the alleged su- pervisory and agency status of Thomas Daake raises no material issue of fact warranting a hearing. Thomas Daake, d/b/a Marquette Manor Limited Partnership, L.P. and Local 50, Service Em- ployees International Union, AFL–CIO, CLC. Cases 14–CA–21231 and 14–CA–21580 January 31, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT Upon a charge filed by Local 50, Service Employees International Union, AFL–CIO, CLC, the Union, in Case 14–CA–21231 on February 1, 1991, and amend- ed on March 5, 1991, and a second amended charge on April 4, 1991, and upon a charge filed by the Union in Case 14–CA–21580 on August 22, 1991, and amended on August 30, 1991, the Regional Director for Region 14 of the Board issued an order consoli- dating cases, consolidated complaint and notice of hearing and order revoking approval of withdrawal re- quest,1 and on November 19, 1991, the Acting Re- gional Director for Region 14 of the Board issued an amended complaint against Thomas Daake, d/b/a Mar- quette Manor Limited Partnership, L.P., the Respond- ent, alleging that it violated Section 8(a)(5) and (1) of the National Labor Relations Act. Thereafter, the Re- spondent filed an answer to the complaint, an amended answer, and an answer to the amendent to the com- plaint. On December 12, 1991, the General Counsel filed a Motion for Summary Judgment. On December 16, 1991, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a 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 Summary Judgment The consolidated complaint alleges that since about August 1, 1990, the Respondent has failed and refused to make required contributions to the Union’s Health and Welfare Fund and since about April 30, 1991, has failed and refused to remit its required dues payments to the Union. The consolidated complaint further al- leges that the Respondent took such actions without notifying the Union or affording the Union an oppor- tunity to negotiate and bargain as the exclusive rep- resentative of the unit and without the Union’s con- sent. In its amended answer and answer to the amendment to the complaint, the Respondent admits the above fac- tual allegations, as well as the allegations to jurisdic- tion and the status of the Union as a labor organiza- tion, but denies the supervisory and agency status of Thomas Daake and denies that its conduct violated the Act. Contrary to the Respondent, we agree with the Gen- eral Counsel that because the Respondent has admitted the above factual allegations of the consolidated com- plaint there are no material facts in dispute.2 Further, in the face of the factual admissions, the Respondent’s bare denial that it has engaged in unfair labor practices does not constitute an adequate defense to allegations that it has violated Section 8(a)(5) and (1) of the Act by failing to abide by the provisions of its collective- bargaining agreement. Accordingly, we grant the Gen- eral Counsel’s Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a limited partnership doing busi- ness as, and trading under the name of, Marquette Manor Limited Partnership, L.P., with an office and place of business in St. Louis, Missouri, is engaged as a health care institution providing nursing care to pri- marily elderly persons. During the 12-month period ending August 31, 1991, the Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $100,000, and annually pur- chased and received at its St. Louis, Missouri facility products, goods, and materials valued in excess of $5000 directly from points outside the State of Mis- souri. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The following employees of the Respondent con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regularly scheduled part-time employees including certified medical technicians, nursing assistants, laundry, dietary, custodians, and housekeeping employees, EXCLUDING of- fice clerical and professional employees, reg- 250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Because the provisions of employee benefit fund agreements are variable and complex, we leave to the compliance stage the question of whether the Respondent must pay any additional amounts into the benefit funds in order to satisfy our ‘‘make whole’’ remedy. Merryweather Optical Co., 240 NLRB 1213 (1979). istered nurses, license practical nurses, guards, and supervisors as defined in the Act. The Union was certified as the exclusive collective- bargaining representative of the unit in 1984. Since 1984 the Union and the Respondent have been party to successive collective-bargaining agreements, the most recent of which is effective by its terms for the period September 27, 1990, through September 26, 1993. At all times since 1984, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment. At all times material here, the collective-bargaining agreement provided in article X that the Respondent contribute to the Union’s Health and Welfare Fund. Since about August 1, 1991, the Respondent has failed and refused to make its required contributions to the Union’s Health and Welfare Fund. At all times mate- rial here, the collective-bargaining agreement provided in article II that the Respondent remit monthly dues to the Union. Since about April 30, 1991, the Respondent has failed and refused to remit its required dues pay- ment to the Union. These provisions relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purpose of collective bargaining. The Respondent took the ac- tion described above without having notified or af- forded the Union an opportunity to negotiate and bar- gain as the exclusive representative of the unit with re- spect to such actions and without the Union’s consent. Accordingly, we find that by the acts and conduct described above, the Respondent has failed and refused to bargain collectively with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing to make contractually re- quired contributions to the Union’s Health and Welfare Fund and to remit contractually required dues pay- ments to the Union, without having notified or af- forded the Union an opportunity to negotiate and bar- gain as the exclusive representative of the unit with re- spect to such actions and without the Union’s consent, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative actions de- signed to effectuate the policies of the Act. We shall order the Respondent to abide by all the terms of its contract with the Union, and to make whole its unit employees by making all required con- tractual payments to the Union’s Health and Welfare Fund, which have not been paid since about August 1, 1990, and by reimbursing employees for any expenses ensuing from the Respondent’s failure to make such payments, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).3 All payments to employees shall be made with interest to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also order the Respondent to remit to the Union all authorized dues payments required by the collective-bargaining agreement since about April 30, 1991, with interest on the dues to be computed in the manner prescribed in New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Thomas Daake, d/b/a Marquette Limited Partnership, L.P., St. Louis, Missouri, its officers, agents, successor, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Local 50, Service Employees International Union, AFL–CIO, CLC as the exclusive bargaining representative of the employees in the appropriate unit, by unilaterally fail- ing to make required contributions to the Union’s Health and Welfare Fund, as required by its collective- bargaining agreement with the Union. The appropriate unit is: All full-time and regularly scheduled part-time employees including certified medical technicians, nursing assistants, laundry, dietary, custodians, and housekeeping employees, EXCLUDING of- fice clerical and professional employees, reg- istered nurses, licensed practical nurses, guards, and supervisors as defined in the Act. (b) Refusing to bargain with the Union by unilater- ally failing to remit to the Union authorized dues pay- ments as required by the collective-bargaining agree- ment with the Union. (c) 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. 251 MARQUETTE MANOR 4 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 National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ (a) Adhere to and abide by all the terms of the Sep- tember 27, 1990, through September 26, 1993 collec- tive-bargaining agreement with the Union. (b) Make whole its bargaining unit employees, in the manner set forth in the remedy section of this deci- sion, for the Respondent’s unlawful failure since about August 1, 1990, to make contributions into the Union’s Health and Welfare Fund, as required by its collective- bargaining agreement with the Union. (c) Remit to the Union, with interest, all authorized dues payments required by the collective-bargaining agreement since about April 30, 1991, as set forth in the remedy section of this decision. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in St. Louis, Missouri, copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent immediately upon receipt 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 Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 50, Serv- ice Employees International Union, AFL–CIO, CLC by unilaterally failing and refusing to make contractually required contributions to the Union’s Health and Wel- fare Fund. The appropriate unit is. All full-time and regularly scheduled part-time employees including certified medical technicians, nursing assistants, laundry, dietary, custodians, and housekeeping employees, EXCLUDING of- fice clerical and professional employees, reg- istered nurses, licensed practical nurses, guards, and supervisors as defined in the Act. We will not refuse to bargain with the Union by unilaterally failing to remit to the Union dues pay- ments as required by the collective-bargaining agree- ment with the Union. 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 adhere to and abide by all the terms of our September 27, 1990, through September 26, 1993 col- lective-bargaining agreement with the Union. WE WILL make whole our employees by making the authorized required contributions to the Union’s Health and Welfare Fund, and by remitting all contractually required authorized dues payments to the Union, and WE WILL reimburse our employees for any expense en- suing from our failure to make such payments, with in- terest. THOMAS DAAKE, D/B/A MARQUETTE MANOR LIMITED PARTNERSHIP, L.P.