NOTICE: This
opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Laurel Baye
Healthcare of
February 29, 2008
DECISION AND ORDER
By Members Liebman and Schaumber
On July 12, 2006,
Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the Charging Party filed an answering brief.
The National Labor
Relations Board has considered the decision and the record in light of the
exceptions and briefs and has decided to adopt the judge’s rulings, findings,[1]
and conclusions[2] and to
adopt the recommended Order as modified[3]
and set forth in full below.[4]
ORDER
The National Labor
Relations Board adopts the recommended Order of the administrative law judge as
modified and set forth in full below and orders that the Respondent, Laurel
Baye Healthcare of
1. Cease and desist from
(a) Refusing to bargain
with United Food and Commercial Workers Union, Local 1996 (the Union) as the
exclusive bargaining representative of its employees in the bargaining unit set
forth below, by changing the employee dress code, attendance policy, vacation
and sick pay benefits, and health insurance carriers, premiums, and benefits,
without first notifying the Union and affording it an opportunity to bargain
about these changes.
(b) In any like or related
manner interfering with, restraining, 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) Notify and give the
All full-time and part-time
service and maintenance employees, CNA’s, restorative aids, activity
assistants, medical record clerks, central supply clerks, and unit secretaries,
but excluding all employees employed by Healthcare Services Group, Inc., including
RN’s, LPN’s and charge nurses, confidential employees, professional employees,
guards and supervisors as defined in the Act.
(b) Upon request of the
previously
existing policies, including the previously existing health insurance
policy.
(c) Make bargaining unit
employees whole for any losses suffered as a result of those unilateral changes
in the manner set forth in the remedy section of the judge’s decision.
(d) Within 14 days from the
date of this Order, remove from its files any reference to discipline imposed
on unit employees pursuant to its unilaterally altered dress code and
attendance policy, and, within 3 days thereafter, notify any affected employees
in writing that this has been done and that any such discipline will not be
used against them in any way.
(e) 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 designated by the Board or
its agents, all payroll records, social security payment records, timecards,
personnel records 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.
(f) Within 14 days after
service by the Region, post at its facility in
(g) Within 21 days after
service by the Region, file with the Regional Director a sworn certification of
a responsible official on a form provided
by the Region at-
testing
to the steps that the Respondent has taken to comply.
Dated,
Wilma
B. Liebman, Member
Peter
C. Schaumber,
Member
(seal) National
Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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 benefit and protection
Choose not to engage in any
of these protected activities.
We
will not refuse to bargain with United
Food and Commercial Workers Union, Local 1996 (the Union) as the exclusive bargaining
representative of our employees in the bargaining unit set forth below, by
changing the employee dress code, attendance policy, vacation and sick pay
benefits, and health insurance carriers, premiums, and benefits, without first
notifying the Union and affording it an opportunity to bargain about these
changes.
We
will not in any like or related manner
interfere with, restrain, or coerce you in the exercise of the rights set forth
above.
We
will notify and give the
All full-time and part-time
service and maintenance employees, CNA’s, restorative aids, activity
assistants, medical record clerks, central supply clerks, and unit secretaries,
but excluding all employees employed by Healthcare Services Group, Inc., including
RN’s, LPN’s and charge nurses, confidential employees, professional employees,
guards and supervisors as defined in the Act.
We
will, upon request of the
We
will make bargaining unit employees whole
for any losses suffered as a result of those unilateral changes, with interest.
We
will, within 14 days from the date of
this Order, remove from our files any reference to discipline imposed on unit
employees pursuant to our unilaterally altered dress code and attendance
policy, and we will, within 3
days thereafter, notify any affected employees in writing that this has been
done and that any such discipline will not be used against them in any
way.
Laurel Baye Healthcare of
Wanda Pate Jones, Esq., for the General Counsel.
Clifford H. Nelson Jr., Esq., for the Respondent.
James D. Fagan Jr., Esq., for the Charging Party.
DECISION
Statement of the Case
Upon consideration of the testimony of the
witnesses, the exhibits received at the hearing and the positions of the
parties at the hearing and the briefs filed by the General Counsel and the
Respondent, I make the following
Findings of Fact
i. the business of the respondent
The complaint alleges, Respondent admits, and
I find that at all times material, that Respondent has been a South Carolina corporation
with an office and place of business in Buford, Georgia, where it has been
engaged in providing skilled care nursing services, that during the past
calendar year, a representative period, Respondent, in conducting its business
operations described above, derived gross revenues in excess of $100,000 and
purchased and received at its Buford, Georgia facility goods valued in excess
of $50,000 directly from points outside the State of Georgia and has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
ii. the labor organization
The complaint alleges, Respondent admits, and
I find that at all times material, the
iii. appropriate unit
The complaint alleges, Respondent admits, and
I find that at all times material, that the following employees of Respondent
herein called the unit, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 8(b) of the Act:
All full-time and part-time service and maintenance employees, CNA’s, restorative aids, activity assistants, medical record clerks, central supply clerks, and unit secretaries, but excluding all employees employed by Healthcare Services Group, Inc., including RN’s, LPN’s and charge nurses, confidential employees, professional employees, guards and supervisors as defined in the Act.
iv. the alleged unfair labor practices
The facts in this case are largely
undisputed. On November 26, 2004, in a
secret-ballot election under the supervision of the Regional Director for
Region 10 of the Board, a majority of the unit employees designated and
selected the Union as their representative for the purposes of collective
bargaining with Respondent with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment and on June 27, 2005, the Board
certified the Union as the exclusive bargaining representative of the employees
in the aforesaid unit. The complaint
alleges, Respondent denies, and I find that since November 26, 2004, the
The complaint alleges that in about May and
August 2005, Respondent violated Section 8(a)(1) and (5) of the Act and made
unilateral changes to the terms and conditions of employment for bargaining
unit employees including a new dress code, new attendance policy, new health
insurance plan carriers and benefits, a reduction in vacation pay benefits, and
a change in vacation notice requirements.
The General Counsel in her brief withdrew that portion of paragraph
16(a) of the complaint with respect to the allegation that Respondent unilaterally
changed the vacation notice requirements.
Respondent admits in a joint stipulation filed at the hearing, that at
all times since the November 26, 2004 representative election, it has refused
to recognize and bargain with the Union and that it has not notified or given
the
On July 18, 2005, the
The General Counsel sets forth in her argument
in her brief what she terms as controlling legal precedent as follows:
Section 8(a)(5) obligates an employer to bargain with its
employees’ representative in good faith regarding ‘wages, hours and other terms
and conditions of employment.’ NLRB v. Borg-Warner Corp, 356
To be found unlawful, the unilaterally imposed change must be ‘. . . material, substantial, and significant’ and must have a ‘real impact’ on or be ‘a significant detriment to’ the employees or their working conditions. Unilateral changes made prior to the certification are not excused and, absent compelling economic considerations for doing so, an employer acts at its peril in making unilateral changes in terms and conditions of employment during the period between an election and a union’s certification, Mike O’Connor Chevrolet, 209 NLRB 701, 703 (1974).
I find that these principles do apply to the
instant case in addressing the issues before me for determination as the issues
are set out by the General Counsel in her brief and as noted in the answers to
the issues as addressed by me:
1. “Whether Respondent’s unilateral issuance
of a new attendance policy violated Sections 8(a)(1) and (5) of the Act?”
Answer: Yes!
2. “Whether Respondent’s unilateral issuance
of a new dress code violated Section 8(a)(1) and (5) of the Act?” Answer:
Yes!
3. “Whether Respondent’s unilateral changes to
the health insurance plan carriers, premiums and benefits violated Section
8(a)(1) and (5) of the Act?” Answer:
Yes! “or were these changes privileged by compelling economic circumstances” Answer: No!
4. “Whether Respondent’s unilateral reduction
of vacation and sick pay from 8 hours to 7.5 hours per day violated Section
8(a)(1)(5) of the Act?” Answer: Yes!
As noted above the facts in this case are
largely undisputed either by specific stipulations of fact, Respondent’s
admissions to allegations in the complaint or the unrebutted testimony of Union
Organizing Director Eric Taylor certified nursing assistants (CNA’s) Chantel
Daniels and Rosetta Greenwood or the unrebutted testimony or concessions of Respondent’s
outside Benefit Consultant John Robert Black or the unrebutted admissions in
the testimony of Director of Personnel Christine Avicolli. Additionally, Respondent’s records and
pertinent sections of its employee handbook support the credible testimony of
the witnesses.
A. The Attendance Policy
CNA Greenwood testified about the written
policy change by its terms effective May 1, 2005, on its face which shows that
Respondent changed its attendance policy on May 1, 2005, in several
respects. Prior to the May 1, unilateral
changes which were implemented by then Facility Administrator Melissa Franklin
at meetings held with the employees, the attendance policy was set out in the “Attendance/Tardiness
section” of the Employee Handbook in separate sections covering tardiness,
calling in, unscheduled absences and the definition of unscheduled absences
which excluded up to four periods of unscheduled medical absences with a
written physician’s excuse. It contained
a progressive disciplinary policy concerning tardiness moving from counseling,
to suspension and to termination.
It is undisputed that Respondent announced and
implemented the new attendance policy effective May 1 without notifying and
bargaining with the
The definitions of “tardiness” and “leave
early” were also significantly changed from the definition of tardiness as 8 minutes
past scheduled reporting time to reporting to work more than 2 minutes after
the start time. Unscheduled absences under
the preexisting policy included, “working less than (4) hours of your scheduled
shift.” Whereas “leave early” under the
new policy was defined as “leaving earlier than five minutes before the end of
the scheduled shift” and “absence” was defined as “Failure to work an entire
scheduled shift.”
Respondent contends that the changes were not
implemented as its new Director of Personnel Christine Avicolli, who commenced
her duties in July 2005, could find no evidence that employees had ever
received a copy of the policy and no evidence that attendance was being tracked
by the director of nursing and that there was no evidence that employees had received
counseling or other corrective evidence under the new policy. Respondent further relies on the testimony of
Avicolli that she, herself, did not take steps to implement the new attendance policy.
Analysis
I find that after consideration of the
foregoing contentions of the parties and a review of the evidence, it is clear
that the policy changes were material, substantial, and significant mandatory
subjects of bargaining which were implemented by
B. The Dress Code
In late April, 2006, Office Administrator
Melissa Franklin, announced a change in Respondent’s dress code to the unit
employees at the same meetings at which she announced the attendance policy
changes. The preexisting dress code was
set out in the employee handbook in pertinent part as follows:
In general, blue jeans, T-shirts, clothing advertising any product, service or organization or other forms of sports or trendy attire are not acceptable working apparel for any staff who have contacts with residents or the general public. Shoes should be closed-toe and in good repair. As safety for our employees and residents is a primary concern, open-toe and sling-back shoes should not be worn. Similarly, jewelry should not adversely affect the safety of residents or staff. For example, large, sharp-edged rings and dangling earrings could injure you or a resident.
. . . .
Jeans and other forms of work clothes may be permissible for employees engaged with work that could cause their clothes to become heavily soiled. Example: Laundry or dietary.
An employee’s hair should be kept clean & arranged neatly so as not to interfere with the employee’s assigned duties. Depending on duty assignment or work area, an employee with long hair may be required to wear a hair net.
The General Counsel points out in her brief
that the preexisting policy’s sole reference to shoes was that they be
closed-toe and that no slingbacks should be worn, that the policy was silent
about white scrubs and shoes. The code
required that hair be clean and neatly arranged but made no references to hair
color, tattoos or body piercings.
However, the new dress code required for the first time that employees
wear scrubs and white shoes.
Analysis
Appropriate wearing apparel is a mandatory
subject of bargaining, St. Luke’s
Hospital, 314 NLRB 434, 440 (1994); Public
Service Co. of New Mexico, 337 NLRB 193, 199–200 (2001). It is clear that the aforesaid changes in
dress code were material, substantial and significant, even requiring the unit
employees to expend their own funds to pay for them as in the case of the white
shoes and scrubs. These new requirements
differed significantly from the requirements imposed by the preexisting dress
code policy. It is undisputed that the
Respondent did not provide the
C. Unilateral Changes in Preexisting
Health Insurance
Carriers, Premiums and Benefits
The complaint alleges that Respondent also
violated Section 8(a)(1) and (5) of the Act by unilaterally, without providing
notice and an opportunity to bargain to the Union, making changes in the Health
Insurance carriers and the premiums and benefits and cost of the health
insurance provisions. John Black
testified that he is the principal owner of Benefits Management Group (BMG)
which provides consulting services and is a broker for Respondent in the
review, analysis, negotiation, placement, and administration of health
insurance polices for Respondent’s employees and their dependents. BMG originally
commenced performing these services for Respondent in 2002. The various health insurance policies of
Respondent are reviewed annually. Prior
to this BMG sends out requests for proposals (RFPs) to the current insurers and
to other carriers and prepares and negotiates rates and policies with the carriers
and prepares a template of what BMG is seeking on behalf of the Respondent and
the plans of the carriers for purposes of comparison. In 2005, the then current health insurance
policies were due to expire on April 30, 2005, and new policies had to be in
place effective on May 1, 2005. In
January, Black, on behalf of BMG sent RFPs to its then existing insurance carriers
and other potential carriers for comparison of rates and benefits and was
awaiting responses from them. However,
in February, 2005, BMG received letters from existing carriers who advised they
would terminate the relationship on April 30, 2005. This occurred prior to the anticipated
renewal. BMG then proceeded to compare
the various policies and determined which proposals, which had been further
negotiated by BMG with the carriers, were the best options for Respondent. It determined that the two new plans which
were preferred provider plans by CIGNA and two gap plans provided by American
Fidelity were the best option to cover the deductibles not covered by the CIGNA
plans and in early to mid-March BMG met with former Director of Human Resources
David Johnson and Benefits Coordinator Bridget Harelson and presented BMG’s
recommendations to them. A few days
later BMG was notified by Respondent that Respondent was accepting BMG’s
recommendations. Ultimately, the plans
were put into effect commencing on May 1, 2005.
It is undisputed that the carriers were changed, and the cost and
benefits and other terms of the health insurance policies were changed. The changes are as follows: There was an increase in premium costs. Respondent would pay a flat rate of $250 per
month rather then continuing to pay 75 percent of the cost which would have
caused Respondent to bear a greater share of the premiums as the premiums
escalated. The policies were to be
implemented corporatewide and were not limited to the
Analysis
It is undisputed that the Respondent was aware
of the upcoming renewals on November 26, 2004, when the Union won the election,
on June 27, 2005, when the Union was certified, in January 2005, when BMG sent
out the requests for proposals, in February 2005, when BMG was notified of the
intent of the current insurance carriers to terminate the various policies,
when BMG met with Respondent’s director of personnel and benefits coordinator
and on March 31 and April 1, the dates the Respondent met with its employees to
explain the changes in policy and to conduct the open enrollment then for the
new policies and on the date (May 1, 2005) when the new policies became
effective. The record in this case
clearly demonstrates the Respondent had many opportunities to notify the Union
and offer to negotiate these changes in carriers, benefits and premium costs of
the insurance but steadfastly declined to afford the
I find there is no basis for Respondent’s
contention that it had an exigency of either an emergency or less sensitive
type which required immediate action to protect the employees’ health insurance
coverage so as to excuse the Respondent’s failure to notify the
D. Reduction of Vacation and Sick Leave Pay
The undisputed testimony of Rosetta Greenwood
and Chantel Daniels established that the Respondent had, since their employment
in 2001 and 2002 respectively, paid employees 8 hours for each day of vacation
or sick leave. However, after new
Director of Personnel Christine Avicolli commenced her employment with
Respondent in July 2005, she was informed by other management employees who
trained her that the employees were only to be paid 7.5 hours a day for
vacation days and sick leave. She began
to pay employees the lower 7.5-per-day rate for vacation and sick leave after
August 22, 2005. The employees protested
and
Analysis
I credit the unrebutted testimony of Greenvood
and Daniels and note that Avicolli conceded that she had made the changes. Respondent presented no evidence to refute
their testimony. It is also undisputed
that Respondent did not provide the
Conclusions of Law
1. Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The
3. Respondent has
violated and is violating Section 8(a)(1) and (5) of the Act.
The Remedy
Having found that Respondent has violated and
is violating the Act by unilaterally changing and implementing a new health
care plan for its unit employees, and by unilaterally imposing other changes in
terms and condition of employment, it shall be ordered to cease and desist
thereform and in any like or related manner, interfering with, restraining or
coercing its employees in the exercise of their rights under Section 7 of the
Act. I further recommend that the
Respondent restore the status quo ante and make whole any employees who
suffered any additional cost or increase in premiums or health care cost they
sustained as a result of the unilateral changes in the health care policies,
and for any expenses and loss as a result of the other unilateral changes in
the attendance policy, vacation pay and sick leave pay and the changes in the
dress code and from any discipline imposed on the employees pursuant to the
imposition of the aforesaid unilateral changes.
The reimbursement to employees shall be computed as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F2d. 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Board precedent establishes that the
appropriate remedy for a unilateral change, including changes to corporate
health care plans, is a restoration order and rescission, upon request. The Board has also held that the ‘standard
remedy for unilaterally implemented changes in health insurance coverage is to
order the restoration of the status quo ante.
Larry Geweke Ford, 344 NLRB 628
(205).
On these findings of fact and conclusions of
law and on the entire record, I issue the following recommended1
ORDER
The Respondent, Laurel Baye Healthcare of
1. Cease and desist from
(a) Refusing to bargain with the United Food
and Commercial Workers Union, Local 1996 as the exclusive bargaining
representative of the employees in the bargaining unit.
(b) Unilaterally changing the dress code,
attendance policy, vacation and sick pay benefits, health insurance carriers
and premiums, and any other changes in the terms and conditions of employment
for unit employees and dependents, without prior notice to or bargaining with
the
(c) Cease and desist from, in any like or
related manner, interfering with, restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary
to effectuate the policies of the Act.
(a) On request, bargain with the
All full-time and part-time service and maintenance employees, CNA’s, restorative aids, activity assistants, medical record clerks, central supply clerks, and unit secretaries, but excluding all employees employed by Healthcare Services Group, Inc., including, RN’s, LPN’s and charge nurses, confidential employees, professional employees, guards and supervisors as defined in the Act.
(b) Restore the status quo conditions that
existed before Respondent’s unilateral changes in terms and conditions of employment,
including rescission of the new dress code, rescission of the new attendance
policy, restoration of the 8 hours per day pay for sick and vacation leave,
and, upon the Union’s request, restore unit employee health insurance benefits
as they existed before the unilateral changes, and/or bargain with the Union
regarding any and all health insurance benefits for unit employees and other
terms and conditions of employment of unit employees.
(c) Reimburse and make whole all unit
employees, who were disciplined or who were otherwise denied work opportunities,
as a result of the unilateral changes, including reimbursement to employees for
increased premiums and any actual costs due to loss of medical or hospital
costs that would have been paid but for Respondent’s unlawful action,
reimbursement for the costs of purchasing white shoes, scrubs, and other apparel
that were not required before the unilateral implementation of the dress code,
and reimbursement to all unit employees for all vacation and sick pay that was
unilaterally reduced from 8 to 7.5 hours per day. Respondent’s monetary liability shall run
from the date of the unilateral changes until the terms and conditions are
restored in accordance with the law. Storer Communications, 294 NLRB 1056
(1989).
(d) Remove from all files of unit employees
any references to the new dress code, new attendance policy, points under the
new attendance policy, and any discipline imposed under these new policies and
notify the affected employees that this has been done and that any discipline
will not be used against them in any way.
(e) Within 14 days after service by the
Region, post at its facility copies of the attached notice marked “Appendix.”2
Copies of the notice on forms provided by the Regional Director for
Region 10, after being signed by Respondent’s authorized representative, shall
be posted for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said notices are not altered, defaced,
or covered by any material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the attached notice to
all current employees and former employees employed by the Respondent at any
time since November 2004.
(f) Within 21 days after service by the
Regional Office, file with the Regional Director for Region 10, a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
(g) Preserve and, within 14 days of a request,
provide at the office designated by the National Labor Relations Board or its
agents, one copy of all payroll records, social security payment records,
timecards, personnel records 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.
Dated at
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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 benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse to bargain with United Food and Commercial
Workers Union, Local 1996 regarding health care plans, carriers, premiums,
costs and benefits, and with regard to attendance policies, sick and vacation
leave, and dress codes as the collective-bargaining representative of employees
in the following unit:
All full-time and part-time service and maintenance employees, CNA’s, restorative aids, activity assistants, medical record clerks, central supply clerks, and unit secretaries, but excluding all employees employed by Healthcare Services Group, Inc., including RN’s, LPN’s and charge nurses, confidential employees, professional employees, guards and supervisors as defined in the Act.
We will not implement new health care plans, carriers,
premiums, costs and new attendance policies, sick and vacation leave, and dress
codes without bargaining with the
We will not in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights under Section 7
of the Act.
We will negotiate in good faith with the Union, upon request,
regarding health care plans and related issues and regarding attendance polices,
vacation and sick leave, and dress codes and all related issues on behalf of
our unit employees.
We will make employees whole for all increased costs
to them and costs incurred as a result of the change in the health care plans
and for all loses incurred by the unit employees as a result of changes in the
attendance policies, vacation and sick leave, dress code, and for any
discipline incurred by the unilateral imposition of changes in these policies,
with interest.
We will remove our files of any discipline imposed on
the unit employees by the unilateral impositions of the changes and will make
them whole for any loss incurred as a result, with interest and will notify
them in writing that the foregoing discipline will not be used against them in
any manner in the future.
Laurel Baye Healthcare of