Heartland Human Services

360 NLRB No. 8 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive 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. Heartland Human Services and American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO. Case 14– CA–096323 October 31, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The Acting General Counsel seeks summary judgment in this case on the ground that there are no genuine issues of material fact as to the allegations of the complaint, and that the Board should find, as a matter of law, that the Respondent has violated Section 8(a)(5) and (1) of the Act. Upon a charge filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO (the Union), the Acting General Counsel issued the complaint on March 21, 2013, against Heart- land Human Services (the Respondent), alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by (a) ceasing to give employees raises on their anniver- sary dates as required by its collective-bargaining agree- ment with the Union; (b) changing its 401(k) plan and provider; and (c) increasing the premium for family and dependent health insurance benefits, all without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct. The Respondent filed an answer and an amended an- swer, admitting all of the factual allegations in the com- plaint, denying all of the legal conclusions in the com- plaint, and asserting an affirmative defense. On June 19, 2013, the Acting General Counsel filed with the Board a Motion for Summary Judgment to which the Respondent filed a response, stating among other things that it agreed that no genuine issues of material fact exist warranting a hearing. On June 24, 2013, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent again filed a response, and the Acting General Counsel filed a brief in reply to the Respondent’s re- sponse. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The complaint alleges, and the Respondent admits, that the Union was certified as the exclusive collective- bargaining representative of the unit employees, that a decertification election was conducted on June 4, 2012, that a revised tally of ballots showed that a majority of valid votes had not been cast for the Union, and that on September 28, 2012, the Board adopted the hearing of- ficer’s recommendation in Case 14–RD–063069 that a rerun election be conducted. The complaint further al- leges, and the Respondent admits, that on March 18, 2013, the Board issued a Decision and Order in Case 14– CA–0878861 finding, among other things, that the Re- spondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the exclusive collective-bargaining representative of the unit (Heart- land I). Upon the Respondent’s refusal to comply with the Board’s March 18, 2013 Order, the Board has sought enforcement of its Order in the United States Court of Appeals for the Seventh Circuit.2 The Respondent admits its continued refusal to recog- nize and bargain with the Union but contends that its conduct does not violate Section 8(a)(5) and (1) because the Respondent lawfully withdrew recognition from the Union based on the fact that it no longer enjoyed the ma- jority support of its employees. Thus, the Respondent admits that on August 8, 2012, it ceased giving employ- ees raises on their anniversary dates as required by the collective-bargaining agreement; that on September 21, 2012, it changed its 401(k) plan and provider; that on September 22, 2012, it increased the premium for family and dependent health insurance benefits; and that it en- gaged in all of this conduct without prior notice to the Union and without affording the Union an opportunity to bargain. The Respondent urges the Board to grant sum- mary judgment in favor of the Respondent and dismiss the complaint, or in the alternative, to stay these proceed- ings until the Seventh Circuit Court of Appeals renders its judgment. We find that there are no issues warranting a hearing because the Respondent has admitted the crucial factual allegations set forth above. In accord with its position in the pending enforcement proceeding in Case 14–CA– 087886, the Respondent claims that its admitted conduct is not unlawful because of its reasonable belief that the Union does not enjoy the majority support of the em- ployees in the collective-bargaining unit, based exclu- sively on the Union’s loss of the June 4, 2012 representa- tion election and the Board’s erroneous direction to con- 1 359 NLRB No. 76. 2 Case No. 13-1954. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 duct a rerun election in Case 14–RD–063069. For the reasons that follow, we find no merit in this defense. With respect to the Respondent’s contention that it is relieved of its bargaining obligation because the Union does not enjoy majority status and the Board erred in ordering a rerun election in Case 14–RD–063069, this defense was raised before the Board and found to be without merit in Heartland I, supra, and it is rejected here for the same reasons. With respect to the Respondent’s request to dismiss the complaint or, in the alternative, to stay these proceed- ings pending a determination in Heartland I by the Unit- ed States Court of Appeals for the Seventh Circuit, the request is denied. It is well settled that the pendency of collateral litigation does not suspend a respondent’s duty to bargain under Section 8(a)(5).3 Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, an Illinois corpo- ration with an office and place of business located at 1200 North 4th Street, Effingham, Illinois, has been en- gaged in providing residential and outpatient mental health services. In conducting its operations during the 12-month peri- od ending February 28, 2013, the Respondent derived gross revenues in excess of $100,000, and purchased and received at its Effingham, Illinois facility goods valued in excess of $20,000 directly from points located outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, is a health care institution within the meaning of Section 2(14) of the Act, and that the Union, American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO, 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 respective names and have been supervisors of the Respondent within the 3 See Maywood Do-Nut Co., 256 NLRB 507, 508 (1981) (citing Kel- ler Aluminum Chairs Southern, Inc., 173 NLRB 947, 952 fn. 14 (1968)); see also Great Dane Trailers, Inc., 191 NLRB 6 (1971); Porta Kamp Mfg. Co., 189 NLRB 899 (1971); and Sec. 10(g) of the Act, which provides: “The commencement of proceedings under subsection (e) or (f) of this section shall not, unless specifically ordered by the court, operate as a stay of the Board’s order.” meaning of Section 2(11) of the Act and agents of the Respondent within the meaning of Section 2(13) of the Act: Jeff Bloemker Executive Director Debra Johnson Human Resources Director Charles A. Siler Director of Business Services 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 employees em- ployed by Respondent at its Effingham, Illinois facility, excluding office clerical and professional employees, guards and supervisors as defined in the Act. On February 1, 2006, the Union was certified as the exclusive collective-bargaining representative of the unit. The most recent collective-bargaining agreement cover- ing the unit was effective from August 21, 2009, through August 20, 2011. At all material times since February 1, 2006, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. On June 4, 2012, pursuant to a petition filed in Case 14–RD–063069, an election was conducted in the unit. The tally of ballots disclosed that 19 ballots were cast for the Union, 18 votes were cast against the Union, and there was 1 challenged ballot, which was sufficient to affect the results of the election. On June 11, 2012, the Union filed objections to the election. On June 28, 2012, a hearing on the challenged ballot and the objections was held. On July 18, 2012, the hearing officer issued a re- port recommending that the challenged ballot be opened and counted. If the revised tally of ballots disclosed that a majority of valid votes had not been cast for the Union, the hearing officer recommended that a rerun election be conducted, having further recommended that three objec- tions be sustained. On August 9, 2012, the Respondent filed exceptions to the hearing officer’s report. On Sep- tember 28, 2012, the Board adopted the hearing officer’s report, findings, and recommendations. On October 12, 2012, the challenged ballot was opened and counted. The revised tally of ballots disclosed that a majority of valid votes had not been cast for the Union. According- ly, a rerun election will be conducted at an appropriate date, time, and place to be determined by the Regional Director. On March 18, 2013, the Board issued a Decision and Order in Case 14–CA–087886, finding, among other things, that the Respondent violated Section 8(a)(5) and HEARTLAND HUMAN SERVICES 3 (1) by withdrawing recognition from the Union as the exclusive collective-bargaining representative of the unit. After the hearing officer’s report issued, the Respond- ent engaged in the following conduct at issue here: 1. About August 8, 2012, the Respondent ceased giv- ing employees raises on their anniversary dates as re- quired by the wage and step schedule set forth in appen- dix A of the collective-bargaining agreement described above. 2. About September 21, 2012, the Respondent changed its 401(k) plan and provider. 3. About September 22, 2012, the Respondent in- creased the premium for family and dependent health insurance benefits. 4. The subjects set forth above in paragraphs 1, 2, and 3 relate to wages, hours, and other terms and conditions of employment of the unit and are mandatory subjects for the purposes of collective bargaining. 5. The Respondent engaged in the conduct described above in paragraphs 1, 2, and 3 without prior notice to the Union and without affording the Union an opportuni- ty to bargain with the Respondent with respect to this conduct. CONCLUSION OF LAW By the conduct described above in paragraphs 1, 2, and 3 the Respondent has been failing and refusing to bargain collectively and in good faith with the exclusive collec- tive-bargaining representative of its employees in viola- tion of Section 8(a)(5) and (1) of the Act. The Respond- ent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and de- sist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found the Respondent violated Section 8(a)(5) by, since about August 8, 2012, ceasing to give employees raises on their anniversary dates as required by the wage and step schedule set forth in appendix A of the collective- bargaining agreement; since about September 21, 2012, changing its 401(k) plan and provider; and since about September 22, 2012, increasing the premium for family and dependent health insurance benefits, we shall order the Respondent to rescind these unilateral changes and restore the status quo ante until such time as the Re- spondent and the Union reach an agreement for a new collective-bargaining agreement or a lawful impasse based on good-faith negotiations. We shall also order the Respondent to make the unit employees whole for any losses attributable to the Respondent’s unlawful conduct, as set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971); and Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). In addition, we shall order the Respondent to reim- burse the unit employees in an amount equal to the dif- ferences in taxes owed upon receipt of a lump-sum backpay payment and taxes that would have been owed had the Respondent not violated Section 8(a)(5) as con- cluded above. Further, we shall order the Respondent to submit the appropriate documentation to the Social Secu- rity Administration so that when backpay is paid, it will be allocated to the appropriate periods.4 ORDER The National Labor Relations Board orders that the Respondent, Heartland Human Services, Effingham, Illi- nois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO as the exclusive collective-bargaining repre- sentative of the employees in the following appropriate unit by unilaterally ceasing to give employees raises on their anniversary dates as required by the wage and step schedule set forth in appendix A of the collective- bargaining agreement; by unilaterally changing the em- ployees’ 401(k) plan and provider; and by unilaterally increasing premiums for family and dependent health insurance benefits, all without prior notice to the Union and without affording the Union an opportunity to bar- gain with the Respondent with respect to this conduct and the effects of this conduct. The unit is: All full-time and regular part-time employees em- ployed by Respondent at its Effingham, Illinois facility, excluding office clerical and professional employees, guards and supervisors as defined in the Act. 4 The Acting General Counsel has requested a notice-reading reme- dy. We agree that this special remedy is appropriate to dispel the ef- fects of the Respondent’s serious and persistent unfair labor practices, especially in light of the Respondent’s repetition of the same type of misconduct previously found unlawful and previously found to warrant such a remedy. See Heartland Human Services, 359 NLRB No. 76, supra. Therefore, we will require that the Respondent’s executive director or, at the Respondent’s option, a Board agent in the executive director’s presence, read the remedial notice to the Respondent’s em- ployees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (b) 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) Rescind the unilateral changes in terms and condi- tions of employment and restore the status quo ante until such time as the Respondent and the Union reach an agreement for a new collective-bargaining agreement or a lawful impasse based on good-faith negotiations. (b) Make the unit employees whole, with interest, for any losses sustained due to the unlawfully imposed changes in wages, benefits, and other terms and condi- tions of employment in the manner set forth in the reme- dy section of this decision. (c) Compensate the unit employees for any adverse in- come tax consequences of receiving their backpay in one lump sum, and file a report with the Social Security Ad- ministration allocating the unit employees’ backpay awards to the appropriate calendar quarters for each em- ployee. (d) Within 14 days after service by the Region, post at its facility in Effingham, Illinois, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent’s authorized repre- sentative, shall be posted and maintained for 60 consecu- tive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, post- ing on an intranet or an internet site, and/or other elec- tronic means, if the Respondent customarily communi- cates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, 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 facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, copies of the notice to all current employees and former employees employed by the Respondent at any time since about August 8, 2012. (e) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest pos- sible attendance, at which the attached notice is to be read to the employees by the Respondent’s executive 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.” director or, at the Respondent’s option, by a Board agent in the executive director’s presence. (f) Within 21 days after service by the Region, file with the Regional Director for Region 14 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. October 31, 2013 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with American Federation of State, County and Municipal Employ- ees (AFSCME), Council 31, AFL–CIO (the Union) as the ex- clusive collective-bargaining representative of the employees in the following appropriate unit by unilaterally ceasing to give employees raises on their anniversary dates as required by the wage and step schedule set forth in appendix A of the collec- tive-bargaining agreement; by unilaterally changing the em- ployees’ 401(k) plan and provider; and by unilaterally increas- ing premiums for family and dependent health insurance bene- fits without prior notice to the Union, and without affording the HEARTLAND HUMAN SERVICES 5 Union an opportunity to bargain with us with respect to this conduct and the effects of this conduct. The unit is: All full-time and regular part-time employees em- ployed by us at our Effingham, Illinois facility, exclud- ing office clerical and professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the unilateral changes we made to the terms and conditions of employment for our unit em- ployees and restore the status quo ante until such time as we reach an agreement with the Union for a new collec- tive-bargaining agreement or a lawful impasse based on good-faith negotiations. WE WILL make our unit employees whole for any loss- es they sustained due to the unlawfully imposed changes in wages, benefits, and other terms and conditions of employment, with interest. WE WILL compensate our unit employees for the ad- verse tax consequences, if any, of receiving a lump-sum backpay award, and file a report with the Social Security Administration allocating the backpay awards to the ap- propriate calendar quarters. HEARTLAND HUMAN SERVICES