Victoria Health Care Center

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154 Wayneview Care Center and Victoria Health Care Center and SEIU 1199, New Jersey Health Care Union. Cases 22–CA–26987, 22–CA–26988, 22– CA–27119, and 22–CA–27365 November 18, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES On August 26, 2008, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 352 NLRB 1089.1 Thereafter, the Respondents jointly filed a petition for review in the United States Court of Appeals for the District of Co- lumbia Circuit, and the General Counsel filed a cross- application for enforcement. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that under Section 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereafter, the court of appeals remanded this case for further proceed- ings consistent with the Supreme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions and to adopt the recommended Order to the extent and for the reasons stated in the decision reported at 352 NLRB 1089 (2008), which is incorporated here by refer- ence. 3 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair labor practice and representation cases. 2 Consistent with the Board's general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes the remaining member who participated in the origi- nal decision. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board Members not assigned to the panel had the opportunity to participate in the adjudica- tion of this case at any time up to the issuance of this decision. Member Pearce is recused and has taken no part in considering this case. 3 In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), we modify the judge’s recommended remedy by requiring that backpay and other monetary awards shall be paid with interest compounded on a daily basis. Also, we shall modify the judge’s recommended Order to provide for the posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons The prior decision adopted the judge’s findings that Respondents Wayneview Care Center and Victoria Health Care Center violated Section 8(a)(3), (5), and (1) by locking out their employees. We reaffirm that deci- sion and emphasize four points. First, the Respondents did not argue that the lockouts were lawful “offensive” lockouts for the sole purpose of pressuring the Union to accept a legitimate bargaining position. See Allen Storage & Moving Co., 342 NLRB 501, 501 (2004). Accordingly, we need not rely on the judge’s finding that Respondent Wayneview’s lockout was unlawful under Dayton Newspapers, 339 NLRB 650, 656–658 (2003), enfd. in rel. part 402 F.3d 651 (6th Cir. 2005) (finding a lockout unlawful where the em- ployer never clearly communicated the conditions it would accept to end the lockout). Second, we agree with the judge, for the reasons stated in her decision, that the Respondents violated Section 8(a)(5) and (1) by locking out their employees in order to coerce the Union to accept an unlawful, unilaterally im- plemented final offer. See Royal Motor Sales, 329 NLRB 760, 777 fn. 51 (1999), enfd. 2 Fed. Appx. 1 (D.C. Cir. 2001). Third, we agree with the judge’s finding that the Re- spondents failed to show that either the Wayneview lockout or the Victoria lockout was a lawful “defensive” lockout reasonably necessary to ensure continued patient care. The judge discredited the testimony of the Re- spondent Wayneview’s witness that she had made a 2- week commitment to hire temporary replacements for potential strikers. Similarly, there is no evidence of any such commitment to replacement workers at Victoria. Furthermore, there is no evidence that the Union was planning another strike or further picketing at Victoria or that the Union would not adhere to its decision to limit concerted activity at Wayneview to 1 day of informa- tional picketing during employees’ nonworking time. Even if additional activity had been planned at either facility, the Union would have been required by Section 8(g) of the Act to give 10 days’ advance notice (a legal obligation the Union had fully complied with in relation to the initial activity). Under these circumstances, the Respondents have failed to show a legitimate and sub- stantial business justification for the lockouts. Fourth, even if the lockouts had been lawful at their inception, beginning September 6, 2005, at Wayneview and shortly before September 6 at Victoria, the Respond- ents began allowing some employees but not others to return to work. The lockouts thus became partial lock- stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. 356 NLRB No. 30 WAYNEVIEW CARE CENTER 155 outs. As found by the judge, the Respondents failed to show a legitimate and substantial business justification for reinstating some employees, but not others. See Field Bridge Associates, 306 NLRB 322, 334 (1992), enfd. 982 F.2d 845 (2d Cir. 1993), cert. denied 509 U.S. 904 (1993). We therefore agree with the judge that the Respondents’ partial lockouts were unlawful. 4 AMENDED REMEDY Respondent Wayneview, having unlawfully suspended and locked out employees, and Respondent Victoria, having unlawfully locked out employees and refused to reinstate economic strikers upon their unconditional offer to return to work, must offer those employees reinstate- ment and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of the suspension, lockout, or refusal to reinstate to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, Respondent Wayneview, having unlawfully implemented new terms and conditions of employment, and Respondent Victoria, having unlawful- ly withdrawn benefits and uniform allowances and un- lawfully implemented new terms and conditions of em- ployment, must make the affected employees whole for any loss of earnings and other benefits resulting from that unlawful conduct in the manner prescribed in Ogle Protection Services, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus daily compound interest as prescribed in Kentucky River, supra. Respondent Victo- ria must also reimburse employee Geraldine Morgan (whom the Respondent unlawfully treated as an on-call, “no-frills” employee without benefits after the lockout) for any expenses resulting from the withdrawal of her health benefits, as set forth in Ogle, supra, and Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd. 661 F.2d 940 (9th Cir. 1981), plus daily compound inter- est as prescribed in Kentucky River, supra. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified in 352 NLRB 1089 and as further modified below, and orders that the Respondents, Wayneview Care Center, Wayne, New Jersey, and Victoria Health Care Center, Matawan, New Jersey, their officers, agents, successors, and assigns, shall take the action set forth in the recommended Order as modified. 4 Having found the lockouts unlawful for the above reasons, we need not rely on the judge’s finding that Respondent Wayneview’s lockout was motivated by antiunion animus. 1. Substitute the following for section A, paragraph 2(g). “(g) Within 14 days after service by the Region, post at its Wayne, New Jersey facility copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since early August 2005.” 2. Substitute the following for section B, paragraph 2(h). “(h) Within 14 days after service by the Region, post at its Matawan, New Jersey facility copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone 5 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.” 6 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 156 out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since June 27, 2005.”