Pimlico Elder Care

1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pimlico Elder Care (Formerly Mt. Sinai Nursing Home, Inc.) t/a Pimlico Elder Care and Dis- trict 1199E, National Union of Hospital and Health Care Employees, AFL-CIO. Cases 5- CA-19792 and 5-CA-20397. September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY Upon a charge filed by District 1199E, National Union of Hospital and Health Care Employees, AFL-CIO, the Union, in Case 5-CA-19792, the General Counsel of the National Labor Relations Board issued a complaint on October 31, 1988, against Mt. Sinai Nursing Home, Inc. t/a Pimlico Elder Care, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that the Respondent and Union were bound to a July 1, 1985, to July 1, 1988 collective-bargaining agreement during the term of which the Respondent unilaterally ceased making contractually required health and welfare contributions, stopped remitting dues to the Union, and failed to pay contractual wage rates to unit employees. Although properly served with copies of the charge and complaint, the Respondent did not file an answer. On April 11, 1989,1 counsel for the General Counsel wrote the Respondent that no answer had been filed to the complaint. The Respondent re- turned the April 11 letter to counsel for the Gener- al Counsel with an April 18 note acknowledging receipt and stating that "business ceased operation today, on event [sic] out of business permanently due to bankruptcy!" On April 18, the Union filed a charge against the Respondent in Case 5-CA-20397.2 The charge, sent by certified mail to the Respondent at its busi- ness office at 4613 Park Heights Road, Baltimore, Maryland, was returned "unclaimed" on May 19. On April 25, counsel for the General Counsel sent a copy of the charge in Case 5-CA-20397 and a transmittal letter to Maury Leibowitz, the Re- spondent's former administrator, at his new place of employment. The charge, transmittal letter, and NLRB Appearance and Designation of Representa- tive Forms were also hand delivered to the recep- tionist at Leibowitz' new place of employment on April 26. All dates are in 1989 unless otherwise noted a This charge alleged that the Respondent unilaterally abrogated the contractual wage -rate provision for unit employees about April 14 On April 27, Leibowitz wrote counsel for the General Counsel acknowledging receipt of the charge in Case 5-CA-20397 and stating that the Respondent did not intend to retain an attorney. Leibowitz wrote that the Respondent's facility was defunct and that it was in the process of filing for bankruptcy. On May 8, the General Counsel issued an order postponing indefinitely the hearing in Case 5-CA- 19792. On July 21, the General Counsel issued an order consolidating cases, amended complaint, con- solidated complaint, and notice of hearing (consoli- dated complaint) in Cases 5-CA-19792 and 5-CA- 20397. The consolidated complaint alleges, inter alia, that the Union is the exclusive representative of an appropriate unit of the Respondent's employees and that this recognition has been embodied in suc- cessive collective-bargaining agreements, the most recent of which runs from July 1, 1988, to July 1, 1990. Paragraph 8(a) of the consolidated complaint alleges that about January 11, 1988, the Respond- ent unilaterally ceased making contractually estab- lished health and welfare contributions. Paragraph 8(b) alleges that the Respondent ceased remitting contractually required dues to the Union about the same date. Paragraph 8(c) alleges that the Re- spondent unilaterally changed the contractual wage rate for unit employees about May 1, 1988. Para- graph 8(d) alleges that, about April 12, 1989, the Respondent unilaterally ceased paying wages to unit employees. Paragraph 10 of the consolidated complaint alleges that the Respondent undertook the acts described in paragraph 8 without affording the Union an opportunity to bargain. On July 25, the Respondent submitted an answer to the consolidated complaint.3 The answer admit- ted, inter alia, the Union's representative status and that the parties have been bound to a succession of collective-bargaining agreements. The Respondent also admitted that "Item 8 is essentially correct, since it shows the increasing financial problems the facility was having at the time." With respect to the allegations in paragraph 8(d), the Respondent said that it ceased operations because of financial difficulties and had since initiated bankruptcy pro- ceedings. The Respondent disputed the allegations in paragraph 10 of the consolidated complaint, stat- ing that: Item 10 is incorrect since negotiations had started by this time for the renewal of the con- tract due to end 6/30/88. The Union and the facility eventually settled the issue of wages in 7 The answer was prepared by Leibowitz, who wrote that the Re- spondent would not hire an attorney to represent it 296 NLRB No. 139 PIMLICO ELDER CARE 1087 12/88 and cleared up other outstanding items at that time. A new salary schedule was worked out and agreed upon, and it was then followed by the facility. On August 17, counsel for the Acting General Counsel filed a Motion for Transfer and Continu- ance of Case Before the Board and for Summary Judgment. In the motion, counsel argued that the Respondent's July 25 answer was legally insuffi- cient and raised no genuine issue of material fact. Specifically, counsel stated that the Respondent's explanation for ceasing operations did not consti- tute a legally sufficient denial of the alleged con- duct. Counsel further claimed that the Respond- ent's assertion that it negotiated and reached an agreement with the Union for a contract to replace the agreement expiring June 30, 1988, even if true, was irrelevant because the Respondent admitted unilaterally changing contractual terms and condi- tions of employment during the term of a con- tract.4 On August 23, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed no response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent admits the operative facts giving rise to the unfair labor practices alleged in the consolidated complaint. It acknowledges the exclusive representative status of the Union and the appropriateness of the unit. It concedes that there have been a succession of collective-bargaining agreements between the parties, culminating in the current 1988-1990 contract. It also admits that, on dates alleged in the consolidated complaint, it uni- laterally ceased making health and welfare contri- butions, stopped remitting dues to the Uhion, modi- fied the contractual wage rate, and later stopped paying wages to unit employees. As an explanation for its unilateral acts, the Re- spondent claims financial difficulties. And, while admitting that it terminated contractual wages on April 12, the Respondent states that it has ceased operations and instituted bankruptcy proceedings. However, these claims of financial difficulty, de- functness, and bankruptcy are insufficient to refute the violations alleged. See generally Goldstein Co., 4 Counsel for the Acting General Counsel also noted that the Respond- ent's answer did not assert that the conduct alleged in par 8(d) of the consolidated complaint was ever the subject of negotiation with the Union. 274 NLRB 682 (1985); Adirondack Foundries, 286 NLRB 263 (1987). The Respondent additionally argues, contrary to the allegations in paragraph 10 of the consolidated complaint, that it bargained and reached agreement with the Union in December 1988 over wages and "other outstanding issues." However, even assum- ing the truth of the Respondent's assertions, they fail to raise a genuine issue of material fact war- ranting a hearing. Thus, the Respondent's represen- tation that an agreement was reached in late 1988 raises no issue of fact regarding its alleged, and ad- mitted, unilateral acts in January and May 1988 and its concomitant obligation to make whole em- ployees and the Union for its failure to bargain with the Union. See, e.g., Bethlehem Steel Corp., 283 NLRB 254, 255 (1987). Neither would negotia- tions nor a December 1988 agreement on wages and "outstanding issues" immunize the Respond- ent's admitted termination of unit employee wages in April 1989. Therefore, we find that the Respondent has not raised any issue properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a Maryland corporation, oper- ates a domiciliary health care facility in Baltimore, Maryland, providing personal care services , meals, and activities.5 During the calendar year ending April 15, 1989, at which time the Respondent ceased operations, the Respondent derived gross revenues in excess of $100,000. During this same period, the Respondent purchased and received at its Baltimore, Maryland facility products, goods, and materials valued in excess of $5000 from enter- prises located within the State of Maryland, includ- ing Acme Paper & Supply Co., Inc. and Holstein Paper Co., each of which enterprises received the products, goods, and materials directly from points outside the State of Maryland. 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 organization within the meaning of Section 2(5) of the Act. S Prior to May 1. 1988, the Respondent operated as a nursing home 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. ALLEGED UNFAIR LABOR PRACTICES A. The Representative Status of the Union The following employees of the Respondent con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time service and maintenance employees who work regularly twenty (20) or more hours in the work week, including nursing assistants, housekeeping em- ployees, dietary employees and maintenance employees, but excluding all office clerical em- ployees, licensed practical nurses, registered nurses, professionals, guards, and supervisors as defined in the Act. Since about 1970, and at all material times, the Union has been the designated and recognized ex- clusive representative of the unit under Section 9(a) of the Act. This recognition has been embodied in a succession of collective-bargaining agreements between the Respondent and the Union, the most recent of which is effective by its terms from July 1, 1988, to July 1, 1990. At all times since about 1970, the Union, by virtue of Section 9(a) of the Act, has been the exclusive representative of the Respondent's employees for the purpose of collec- tive bargaining. B. Refusal to Comply with the Contract About January 11, 1988, during the term of the 1985-1988 collective-bargaining agreement, the Re- spondent modified the existing terms and condi- tions of employment in the unit by eliminating the contractually established health and welfare contri- butions. About the same date, the Respondent uni- laterally ceased remitting dues to the Union as re- quired by the contract. About May 1, 1988, the Re- spondent unilaterally modified the wage provision of the collective-bargaining agreement. About April 12, 1989, during the term of the current con- tract, the Respondent unilaterally ceased paying wages to unit employees. The contractual provisions that the Respondent eliminated related to wages, hours, and other terms and conditions of employment in the unit and are mandatory subjects for purposes of collective bar- gaining. unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 2. The unfair labor practices of the Respondent, described above, affect commerce within the mean- ing of Section 2(6) and (7) 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 action designed to effectuate the policies of the Act. 6 We shall order the Respondent to make whole unit employees for any losses they suffered by the Respondent's failure to adhere to the terms of the contract, Ogle Protection Service, 183 NLRB 682 (1970), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). We shall also order the Resd- pondent to make the required health and welfare fund payments it failed to make since January 11, 1988.7 We shall further order the Respondent to make whole unit employees for any loss of benefits caused by its failure to make these required fund contributions and to reimburse employees for any expenses ensuing from the Respondent's unlawful failure to make such contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981). ORDER The National Labor Relations Board orders that the Respondent, Pimlico Elder Care (formerly Mt. Sinai Nursing Home, Inc.) t/a Pimlico Elder Care, Baltimore, Maryland, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing to bargain with the Union by failing to make required contributions on behalf of its unit employees to the health and welfare funds; by fail- ing to remit to the Union those dues withheld from employees' paychecks as required by the contract; and by failing to pay unit employees the contrac- tually prescribed wage rates. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. CONCLUSIONS OF LAW 1. By the acts described above in paragraph II,B, the Respondent has failed and refused, and is fail- ing and refusing, to bargain collectively and in good faith with the representative of its employees, and the Respondent thereby has been engaging in 6 Because it is apparent from the General Counsel 's motion that the Respondent closed its operations in April 1989 , we shall require the Re- spondent to mail copies of the notice to all unit employees employed at the time of the closure See, e g., Print-Quit, 262 NLRB 857, 862 fn 19 (1982) Any additional amounts owed with respect to these fund contribu- tions shall be calculated in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979) PIMLICO ELDER CARE 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with District 1199E, Na- tional Union of Hospital and Health Care Employ- ees, AFL-CIO, as the exclusive representative of the employees in the following unit: All full-time and regular part-time service and maintenance employees who work regularly twenty (20) or more hours in the work week, including nursing assistants, housekeeping em- ployees, dietary employees and maintenance employees, but excluding all office clerical em- ployees, licensed practical nurses, registered nurses, professionals, guards, and supervisors as defined in the Act. (b) Pay into the funds, on behalf of its unit em- ployees, those health and welfare contributions it failed to make as a result of the unlawful discon- tinuation of fund payments , in the manner set forth in the remedy section of this decision. (c) Make whole the unit employees for any loss of pay and benefits suffered as a result of the Re- spondent's failure to abide by the terms of the col- lective-bargaining agreement with the Union, in- cluding making required wage payments and health and welfare contributions, in the manner set forth in the remedy section of this decision. (d) Remit to the Union the union dues deducted from employees' paychecks, with interest. (e) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Mail a copy of the attached notice marked "Appendix."8 to the Union and to all unit employ- ees who were employed at the Baltimore, Mary- land facility. Copies of the notice, on forms provid- ed by the Respondent's authorized representative, shall be mailed by the Respondent immediately upon receipt. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX 1089 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 ordered us to post and abide by this notice. WE WILL NOT fail to make contributions on behalf of our unit employees to the contractual health and welfare funds. WE WILL NOT fail to remit to the Union dues withheld from unit employees' paychecks, as re- quired by the contract. WE WILL NOT fail to pay unit employees the contractually required wage rates. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of our employees in the bargaining unit: All full-time and regular part-time service and maintenance employees who work regularly twenty (20) or more hours in the work week, including nursing assistants, housekeeping em- ployees, dietary employees and maintenance employees, but excluding all office clerical em- ployees, licensed practical nurses, registered nurses, professionals, guards, and supervisors as defined in the Act. WE WILL adhere to the terms of our collective- bargaining agreements with the Union, including, but not limited to, the provisions governing health and welfare fund contributions, dues remittance, and wage rates. WE WILL make whole the unit employees for any losses or expenses they suffered as a result of our failure to abide by the terms of our collective- bargaining agreements with the Union, including paying employees owed wages and making re- quired contributions to employees' health and wel- fare funds. 9 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 Nation- al 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." 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL remit to the Union the union dues de- ducted from employees' paychecks, with interest. PIMLICO ELDER CARE (FORMERLY MT. SINAI NURSING HOME, INC.) T/A PIMLICO ELDER CARE