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,
Essex Valley
Visiting Nurses Association and New Community Corporation and New Community
Health Care, Inc. and Health Professional and Allied Employees,
Local 5122. Case
22–CA–24770
April 30, 2008
SUPPLEMENTAL DECISION
AND ORDER
By
Chairman Schaumber and Member Liebman
On
January 19, 2007, Administrative Law Judge Mindy E. Landow issued the attached
supplemental decision. The Respondents
filed exceptions and a supporting brief, and the General Counsel filed an
answering brief.1
The
National Labor Relations Board has considered the decision and the record in
light of the exceptions2 and
briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions and to adopt the recommended
Order as modified and set forth in full below.4
ORDER
The
National Labor Relations Board orders that the Respondents, Essex Valley
Visiting Nurses Association, New Community Corporation, and New Community
Health Care, Inc., a single employer, East Orange, New Jersey, their officers,
agents, successors, and assigns, shall make whole the individuals named below,
by paying them the amounts following their names, plus interest to be computed
in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), minus tax withholdings required by Federal and State laws:
Patricia
Jones $26,306.44
Shirley
Lambert 26,974.68
Stella
Savino 21,178.24
Anne
Schepers 13,650.30
TOTAL $88,109.66
Dated,
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(seal) National
Labor Relations Board
Benjamin W. Green, Esq., for the General Counsel.
Alex
Tovitz (Jasinski and Williams, P.C.), of
SUPPLEMENTAL DECISION
Statement of the Case
Mindy
At the hearing,
the parties stipulated that the method used to compute backpay in the amended
compliance specification, as described in paragraphs 5 through 8 therein and reflected
in the worksheets affixed thereto as attachments (a) through (d), is
appropriate. Respondent contends, for the reasons discussed below, that the
compliance specification should be dismissed and no backpay is owed to the
claimants. In the event it is found that backpay is owed, Respondent argues
that the amount set forth in the in the amended compliance specification should
be reduced insofar as there was a willful loss of earnings and failure to
mitigate the accrual of backpay during the relevant period.
The issues to be
resolved herein are (1) whether the compliance specification should be dismissed
in its entirety; (2) whether the claimants failed to conduct a reasonable
search for work and mitigate backpay and (3) whether EVVNA, NCC, and NCHC
constitute a single employer and should be held jointly and severally liable
for purposes of any backpay liability herein.
Based upon the
entire record,[5]
including the transcript and exhibits in the underlying matter, of which I take
administrative notice, the Board’s Decision and Order, as affirmed; the testimony
of the witnesses, and my observation of their demeanor; documents entered into
the record herein; stipulations of the parties; certain inferences drawn from
Respondent’s failure to satisfactorily comply with counsel for the General
Counsel’s subpoenas duces tecum, as discussed below, and the briefs filed by counsel for the
General Counsel and Respondent, I make the following
Findings of Fact
i. respondent’s motion to dismiss
the
compliance specification
At the hearing,
and in its brief, Respondent moved for dismissal of the compliance specification.
Respondent acknowledges that the Board found that it was in violation of
Section 8(a)(1) and (5) of the Act by its unilateral transfer of the four
nurses in question from their position as utilization management (UM) nurses to
field nurses. Respondent argues, however,
that the Board additionally concluded that EVVNA did not violate either Section
8(a)(3) or (5) when it subsequently laid off the four nurses in question, and
that the failure to bargain was not a factor in the subsequent adverse employment
determination. Thus, according to Respondent, the “only reasonable reading of
this decision is that the Board determined that the failure to bargain over the
transfer is only a technical 8(a)(5) violation and the Nurses should not be
entitled to any backpay.” In support of this argument, Respondent points to the
fact that the Board only ordered EVVNA to make whole the nurses for “any losses
attributable to its unilateral transfer.” Respondent argues that, because that
transfer was not a factor in the subsequent decision to terminate the
employment of the nurses, the Board “simply made it impossible” to find that
the claimants are owed any backpay.
Counsel for the
General Counsel argues, to the contrary,
that Respondent’s motion is in essence an untimely motion for reconsideration
of the Board’s finding that the nurses are entitled to a backpay remedy and
that the lawful discharge did not toll Respondent’s backpay obligation in any
event.
Respondent’s
reading of the Board’s decision is flawed.
Although the Board reversed the administrative law judge’s finding that
EVVNA unlawfully discharged the nurses, it specifically addressed the issue of
whether, in the context of the violations found, backpay is owed to the four
named claimants. As the Board reasoned, “[t]he lawful discharge of September
13, 2002 did not toll backpay as that discharge was from the field nurse
position.” Accordingly, EVVNA was ordered
to make whole the nurses in the manner “as set forth in the amended remedy section
of this decision.” Contrary to Respondent’s contentions herein, the Board found
that “the nurses are entitled to backpay, at the UM rate from the date of their
transfer (August 12) until March 14, 2002,” 343 NLRB at 821 and fn. 15. On
November 18, 2005, the Third Circuit granted default judgment enforcing the
Board’s Order.
Moreover, it is
uncontested that Respondent failed to seek at any prior procedural stage either
clarification, reconsideration, or review of the Board’s remedial findings. Respondent
is, therefore, precluded from doing so here. Scepter Ingot Castings, Inc., 341 NLRB 997 (2004), enfd. 448 F.3d
388 (D.C. Cir. 2006), citing Grinnell
Fire Protection Systems Co., 337 NLRB 141, 142 (2001); Regional Import & Export Trucking Co., 323 NLRB 1206, 1207
(1997); Haddon House Food Products,
260 NLRB 1060 (1982) (under Sec. 10(e) of the Act, the Board is without
jurisdiction to modify a court-enforced Board order). Accordingly, Respondent’s motion to dismiss
the compliance specification is denied.
ii. the claimants’ alleged failure
to mitigate backpay
A. General Legal
Framework
In a backpay
proceeding, the General Counsel must first show the amount of gross backpay due
to each claimant. The respondent then has the burden of establishing
affirmative defenses including willful loss of interim earnings or any other
factor that will eliminate or mitigate its liability. Midwestern Personnel Services, 346 NLRB No. 58 (2006) (and cases cited
therein); Atlantic Limousine, 328
NLRB 257, 258 (1999), enfd. 243 F.3d 711 (3d Cir. 2001). To be entitled to
backpay, a claimant must make reasonable efforts to secure interim employment. Electrical Workers Local 3 (Fischbach &
Moore), 315 NLRB 1266 (1995) (citing Mastro
Plastics Corp., 136 NLRB 1342 (1962), enfd. in relevant part 354 F.2d 170
(2d Cir. 1965), cert. denied 384 U.S. 972 (1966)). A respondent bears the
burden of demonstrating that a claimant failed to exercise reasonable diligence
in searching for work.
The Board has
long held that alternative employment must be “substantially equivalent to the
position from which [the claimant] was discharged and is suitable to a person
of [their] background and experience.” Southern
Silk Mills, 116 NLRB 769, 773 (1965). In determining the reasonableness of
any claimant’s efforts, factors such as age, skills, qualifications, and the
labor conditions in the area are appropriate for consideration. Mastro Plastics, supra at 1359; Alaska Pulp Corp., 326 NLRB 522, 535
(1998); Laredo Packing Co., 271 NLRB
553, 556 (1984).
It is equally
well settled that the test for mitigation is not measured by an individual’s
success in gaining employment, but rather by the efforts made to seek work. A respondent
must show that the job search efforts were unreasonable and there were suitable
jobs available for someone with the claimant’s qualifications that a person
undertaking a reasonable search would have secured. Black Magic Resources, Inc., 317 NLRB 721 (1995); Lloyd’s Ornamental & Steel Fabricators,
211 NLRB 217, 218 (1974). The mere “existence of job opportunities by no means
compels a decision that the discriminatees would have been hired had they
applied.” Delta Data Systems Corp.,
293 NLRB 736, 737 (1989); see also Associated
Grocers, 295 NLRB 806 (1989).
Thus, a
respondent must prove that the claimant did not seek or refused to accept suitable
employment. Food & Commercial Workers
Local 1357, 301 NLRB 617, 621 (1991). This burden is not met by a showing
of lack of employee success in obtaining interim employment or low interim
earnings. Arthur Young & Co., 304
NLRB 178 (1991); Food & Commercial
Workers, supra. Success is not a test of reasonableness. Bauer Group, 337 NLRB 395, 396 (2002),
quoting Minette Mills, Inc., 316 NLRB
1009, 1010–1011 (1995).
An employee’s
poor recordkeeping or faulty memory regarding a job search that was conducted
years ago will not disqualify that employee from backpay. Midwestern Personnel Services, supra, slip op. at 4; United States Can Co., 328 NLRB 334, 336
(1999), enfd. 254 F.3d 626 (7th Cir. 2001). In this regard, the Board has
observed that “it is not unusual or suspicious that backpay claimants cannot remember
the names of employers to whom they applied for work.” Arthur Young & Co., supra at 179. Moreover, even if the
evidence raises a doubt as to the diligence of a claimant’s efforts to gain
employment, such doubt is to be resolved in favor of the employee and against
the respondent, who is responsible for the unfair labor practice. Alaska Pulp Co. supra at 535; United Aircraft Corp., 204 NLRB 1068
(1973).
B. Respondent’s Evidence Regarding the
Job
Market for Nurses
Respondent
contends that during the backpay period the job market was extremely favorable
to registered nurses and that this demonstrates that the nurses improperly limited
their job searches and/or did not diligently look for work.
In support of
this argument, Respondent relies upon evidence, adduced in the underlying
proceeding, that in September 2000, the registered nurse vacancy rate in
C. The Job Responsibilities of the
Utilization
Management Nurses
The underlying
record establishes that, as UM nurses, the four claimants were responsible for
such tasks as appealing the denial of payment by various funding sources;
responding to requests to review medical records, and providing information
necessary to authorize Medicare payment; ensuring that documents submitted to
Medicare were correct and would justify payment; and resolving questions
regarding the appropriate funding source to be billed for patient care and
making sure that proper compensation was received for services rendered. As the
Board observed, “the UM’s employed by [EVVNA] were registered nurses (RNs) who
dealt with insurance companies, health maintenance organizations, Medicaid,
Medicare, and were responsible for ensuring that [EVVNA] was paid for the
services it performed.” 343 NLRB 817. As
UM nurses, the claimants did not make visits to patients or perform direct patient
care. As discussed below, Respondent contends that, as registered nurses, the
claimants failed to mitigate backpay by not seeking staff or field nurse positions,
in other words, those positions which entail direct patient contact.
D. Evidence Regarding the Nurses’ Efforts
to
Search for Work
1. Stella Savino
Respondent
contends that Savino did not diligently search for interim employment.
Specifically, Respondent argues that Savino (1) improperly limited her job
search to utilization management or similar types of positions; (2) limited her
job search to part-time positions but ultimately accepted a full-time position
after the backpay period had expired; (3) did not produce any documents
evidencing her job search; and (4) failed to list prospective employers on a
form she completed for the Regional office.
The record
establishes that Savino has been a registered nurse for approximately 25 years.
In the underlying proceeding she testified that she was hired by EVVNA in 1990
or 1991 as a medical review nurse, which later turned into the UM position. She
also testified that she had not performed direct patient care in about 20
years.
Savino testified
that after she was laid off from her employment with EVVNA she looked for
help-wanted advertisements in newspapers such as the Newark Star Ledger,
nursing journals such as The Nursing Spectrum and via the internet. Savino
testified that once she obtained employment, she disposed of all papers she had
accumulated and did not retain any documents relating to her job search during
the backpay period. Subsequent to being laid off from EVVNA, Savino searched
for equivalent positions in utilization management or case management, and for
positions with hours comparable to those she had with EVVNA, where she worked
30 hours per week, due to ongoing family responsibilities. Savino admitted that
she did not search for field nurse positions, but testified that she was not
qualified for these positions. Savino
acknowledged that when testifying during the underlying proceeding she stated
that she would be able to perform field work if provided with a clinical
nursing refresher course.
Savino’s job
search report, which was provided to the Region in October 2002, lists seven
prospective employers from whom she sought work during the period from
September 2001 through April 2002. Savino also testified that she sent resumes
and cover letters responsive to advertisements found in publications or on line
which were not listed in her job report.
One employment
prospect involved working with the
2. Shirley Lambert
Respondent
contends that Lambert (1) improperly limited her job search to utilization
management or similar types of positions; (2) did not interview for a single
position; (3) submitted job search lists to the Region which contained gross
inconsistencies; and (4) attended a full-time computer course and abandoned any
ability to search for work.
Lambert became a
registered nurse in 1971. She worked for 19 years as a staff nurse and charge
nurse. She was hired by EVVNA in 1991 and worked as a medical review nurse 3
days per week and as a field nurse for the remaining two. After approximately 1
year, she became a full-time medical review nurse, which later became the UM
position. In this position she performed no patient care.
Lambert
testified that after her employment with EVVNA was terminated, she went to the
unemployment office to register for benefits and had a friend prepare a resume.
Lambert began to attend open houses sponsored by prospective employers and
attended seminars offered by the unemployment office. Lambert attended open house
meetings at the University of Medicine and Dentistry of New Jersey (UMDNJ), St.
Michaels and Jersey Care, among others. She recalled that at a UMDNJ open house
held in November 2001, she spoke to both the director of home care[7]
and the manager for the utilization management department. She provided them
with her resume, and was told that someone would contact her. She additionally
sent another copy of her resume, by facsimile transmission, to the UMDNJ human
resource department, but did not hear back from them at the time. Subsequent
efforts proved more fruitful, and Lambert eventually secured employment at
UMDNJ in November 2002. Lambert acknowledged that she did not apply to any
available staff nurse positions, stating that because she had not done such
work in a number of years, she did not feel capable of doing it without
retraining. In the underlying unfair labor practice proceeding, Lambert testified
that she would have been willing to go into the field with a refresher course.
In forms
supplied to the Region, Lambert listed various attempts to contact prospective
employers.[8] Lambert testified that she supplemented these
attempts with followup phone calls. She acknowledged that she failed to secure
any interview with the employers listed in these forms, other than UMDNJ. Lambert
additionally testified that the notations on the forms did not fully reflect
the extent of her job search. In this regard, she stated she looked for work
just about every day in newspapers such as the New York Times and the Star
Ledger, as well as in the Nursing Spectrum. She also searched the internet.
In December
2001, Lambert began attending a computer skills course, arranged through and
paid for by the State Unemployment Insurance office. This course met Monday
through Friday from 9 a.m. to 5 p.m. She made an arrangement with her
counselors, however, that if she was called for a job interview, she could miss
class and complete her assignments on Friday, which was designated “career
day,” during which there were no classes. During the period of time when
Lambert attended computer training, she continued an on-line search for jobs
during her off hours. Eventually, Lambert obtained part-time employment with
the Elizabeth Visiting Nurse Association as a home care coordinator. After
that, Lambert received several job offers and accepted employment with UMDNJ.
She began working there on November 18, 2002, in the utilization management
department.[9]
With regard to
her computer course, Lambert denied that she was unavailable to work during
that period of time. She made it apparent to her instructors that she was
looking for employment, and was reassured that she would be able to continue to
look for work while participating in classes.[10]
Lambert additionally testified that had she obtained employment during the time
she was taking the computer course, she would have accepted it. She stated that
any potential conflict with the computer course would have been resolved due to
the fact that there are generally several intervening months between the dates
when one is interviewed and when employment is confirmed. If there had been an
actual conflict, Lambert testified that she would have accepted the offer of
employment and would have attempted to obtain training at a different time.
Lambert further testified that she decided to attend the course after seeking
to obtain employment and realizing that computer skills were becoming more and
more necessary to obtain work in her field.
3. Patricia Jones
Respondent
contends that Jones (1) improperly limited her job search to utilization
management or similar types of positions; (2) went on job interviews only to
those positions “she felt she was qualified for”; and (3) attended a computer
course which severely hampered her ability to search for work.
Jones has been a
registered nurse since 1981. She was hired in about 1991 as a community health
nurse and field nurse and served as a field nurse, providing home care services
and self-care instruction to individuals who had been recently hospitalized. In
about 1992, she transferred to a medical review position.
Jones testified
that after she was laid off from her employment with EVVNA she sent letters and
resumes to many facilities, looking for help-wanted advertisements in
periodicals such as Nursing Outlook, Nursing Advance, the Star Ledger, and
through “word of mouth.” Jones submitted
reports to the Region in which she listed those employers she contacted during
her search for work during the backpay period. Jones initially testified that
she might not have listed all the facilities she contacted during this period
of time, but could not be certain. She later testified that she did not keep a
record of every contact she made, and did not believe that she had listed every
job she applied for. In this regard, Jones testified that she sent out resumes
practically every day. In September
2001, Jones had an interview for a utilization management position with
Jones collected
unemployment insurance benefits from October 2001 to April 2002. Commencing in February and continuing through
May 2002, Jones took a computer skills course, arranged and paid for by the State
Unemployment Agency, which ran from 9 a.m. to 2 p.m., Monday through Friday.
Jones testified that she took the course to increase her chances of obtaining
employment, as computer proficiency appeared to be a requirement for jobs in
her field. Jones further stated that she continued to seek work during the time
she took the course, staying late and submitting resumes to prospective employers
via the internet. She did not restrict herself to any particular work shift,
and applied for some evening positions in medical records departments. Jones
further testified that had she received a job offer while undergoing computer
training, she would have accepted it. Jones eventually obtained employment in
July 2002, and has had a series of positions since that time. Since February
2004, Jones has been employed as a UM nurse at UMDNJ. Jones acknowledged that,
other than the one staff nurse position at UMDNJ, she did not apply for any
other staff nurse position. She stated that with training she probably could
have done the job, but she was not comfortable doing so without such training.
She felt more qualified for positions similar to the one she held with EVVNA,
because she hadn’t been a bedside nurse for a long while.
4. Anne Schepers
Respondent
contends that Schepers (1) only sought part-time positions, but then voluntarily
accepted full-time hours at her new job; (2) improperly limited her job search
to utilization management or similar types of positions; and (3) admittedly
stopped looking for work.
Schepers
testified that she has been a registered nurse for approximately 25 years. Up
until 1995, she worked in direct care nursing positions. In that year, she was
working for EVVNA as a per diem staff nurse, and was transferred to the UM position.
After Schepers
was laid off by Respondent, she collected unemployment insurance for six
months. During this time, and thereafter, Schepers sent out resumes and went on
a number of interviews with prospective employers including Blue Cross/ Blue Shield,
the
Schepers
testified that after she was laid off, she looked for work on a daily basis,
and that the forms she completed for the Board listing her job search did not
fully reflect the extent of her attempts to seek work. The positions she applied
for were generally case management positions, with responsibilities similar to
those she had when employed at EVVNA. She did not apply for direct care nursing
positions. Further, Schepers had worked on a part-time basis for EVVNA[13]
and she limited her job search to per diem or part-time positions, due to her
family responsibilities. In early February 2002, Schepers obtained per diem
employment with Atlantic Health Systems, where she conducted field-based
screenings of individuals, measuring blood pressure, cholesterol, and blood
sugar levels. Schepers had initially applied for this position in November
2001, and acknowledged that while she scanned publications for available
positions, she did not actively interview or apply for any other position after
December of that year. Schepers began her employment in this position on
February 4, 2002, after successfully completing a certification course which
commenced on January 13. She continued to perform screenings on a per-diem basis
and then began work 2 days per week as an occupational nurse, screening
applicants for public employment. Eventually, this position became a full-time
position; however, it appears from the record that this did not occur until
after the backpay period had expired.
Schepers
testified that she is familiar with the job responsibilities of a field nurse,
but did not seek this type of position due to the fact that she had not
performed such work for approximately 7 years at the time of her layoff. While
she deals directly with individuals in her current position, these are generally
healthy individuals who are being screened for potential health problems, as opposed
to ill patients or those who have recently been discharged from the hospital.
E. Respondent’s Alleged Single-Employer
Status
1. Respondent’s
operations at the time of the
underlying proceeding
Prior to its
acquisition by NCC, EVVNA had previously been associated with and managed by
NCC is a large
community development organization which manages various profit and nonprofit
organizations, including NCHC. At the time the EVVNA was acquired by NCC, and
at the time of the underlying hearing in this matter, NCHC was a separate
corporation, affiliated with other “New Community” entities. NCHC was
responsible for the management of the health care facilities within the NCC
organizational sphere including the New Community Extended Care Facility (the
Nursing Home), which is a skilled nursing facility. In addition, NCHC operated
a home health agency, several adult medical day care centers, and a family
service bureau.
Sometime prior
to July 2000, EVHC asked NCC to take control over EVVNA and Care at Home.
According to the underlying record, at the time of its acquisition, EVVNA was
in severe financial condition, and EVHC was “dumping a lot of money into
it.” NCC wanted to acquire EVVNA, even
though it was operating at a loss, because the two entities served compatible
missions—i.e., providing health care services in the
Monsignor Linder
is the founder and CEO of NCC. As of July 2000, he was also a member of the board
of directors of NCHC. Shakir Hoosain was then the CEO and executive administrator
of NCHC, as well as the Nursing Home. Vincent Golden was the financial director
of NCHC and all its health care affiliates. Frenchie Pierce was an officer of
NCHC and the director of nursing for the Nursing Home.
Mary Hanna was
the CEO of EVVNA at the time of the transfer. In July 2001, Hanna was replaced
by Hoosain. The decision to install him as CEO of EVVNA was made by NCHC. At
this time, Golden was the director of finance for both EVVNA and NCHC.
After the
acquisition, the board of directors for EVVNA was reconstituted. According to
Golden, “[W]e formulated a separate board to manage it, which was part of the
old board of directors of Essex Valley VNA and New Community board members.”
In November
2000, Hanna wrote to Linder regarding EVVNA’s critical nursing shortage,
recommending a four-part plan to ameliorate the problem and requesting permission
to implement it.[15] In July
2001, Hanna presented a report to the EVVNA board of trustees in which she
discussed the difficulties that organization was having with the recruitment of
nurses. As Hanna noted, “NCC Human Resources is seriously looking at options
and developing some recommendations for consideration. . . . As a temporary
measure, Mr. Hoosain [then CEO of NCHC] is negotiating a contract for the
nursing staff with an outside Agency . . . . ”
As noted above,
in about July 2001, Hanna was replaced by Hoosain, who split his time between
NCHC and EVVNA. The decision to replace Hanna was made by the board of directors
of NCHC, and communicated to Hoosain by Linder.
In July 2001,
both Hoosain and Golden joined EVVNA’s bargaining team, which was then in the
process of negotiating an initial contract with the
In August 2001,
when Hoosain implemented the transfer plan at issue in the underlying
proceeding, he also transferred 13 other employees to various affiliates of
NCC, “within the New Community Corp. network.” Hoosain also consulted with
Pierce regarding the UM’s self-evaluation of their clinical skills and further
discussed the possibility of bringing the UM’s into the Nursing Home to update
their clinical skills.[16]
Due to EVVNA’s
poor financial condition, NCC provided funding to pay the salaries of its
employees, including Hoosain’s, although the nurses continued to receive their
paychecks from EVVNA. NCC also provided, as Golden testified, a “significant
amount” of services to EVVNA including management, accounting, human resources,
legal representation, recruitment, transportation and security. In 2001, NCC provided
services to EVVNA valued at $571,008. When Golden was asked whether these had
been paid for, he replied, “I don’t think so, not at this date it wasn’t
because obviously there was no cash to pay for it.” There are loans on the books of NCC and EVVNA,
to cover the costs of the loans and services provided, but there was no
evidence that they had been paid or that any effort to collect these loans had
been made.
As Golden
explained: “[t]here’s interchanges of services for fee . . . but we don’t move
funds around.” With regard to whether there are loans outstanding, Golden
replied, “Sure like in this year here [referring to 2001]
Until New Community may decide that they
don’t want to put more money into and lop it off, close it down. I’ll give you
an example, the nursing home. The nursing home ran a debt up of 5.5 million
dollars over a five year period. . . . And, as of last year, that debt has been
fully paid back. So if New Community feels that the mission we’re providing is
a mission that should be provided and there’s a need in the community, they’ll
go a long way as long as they [sic] comfortable, at some point in time that the
operation will break even and then eventually pay back whatever debt they’ve incurred
in their period of hard times.
As Judge Fish
found, based upon this testimony as well as other evidence in the underlying
proceeding, there was a continuing transfer of cash from NCC to EVVNA, generating
an intercompany liability, to pay for EVVNA’s losses. There is no evidence
adduced in either the initial or this supplemental proceeding to show that this
relationship has been altered, or that any of EVVNA’s indebtedness to NCC has
been repaid.
2. Respondent’s
alleged failure to comply with the
General Counsel’s subpoena duces tecum
Three subpoenas
duces tecum dated August 30 were issued by counsel for the General Counsel.
These were addressed to Jacky E. Clay or the custodian of the records of each
of the named Respondents herein seeking the production of certain documents.[17]
The documents sought are substantively identical. The subpoenas seek documents
which show, inter alia, the (1) names and addresses of the three named entities
and documents showing use of the facilities; (2) owners of the Respondents,
their assets, the share or percentage of each owner, and purchase or transfer
information; (3) managerial, personnel and organizational hierarchy and
structure of the Respondents, including common management, supervision,
facilities and equipment, employee interchange, and/or integration of operations
between the Respondents; (4) financial transactions between the Respondents
including loans between them and purchases; (5) personnel or labor relations
policies, including those relating to the common or integrated administration
and maintenance of such policies; (6) the names of all attorneys, accountants,
agents, and subcontractors, including those who performed services for one
Respondent but who were paid by another; (7) the business purposes of the
Respondents including licenses, permits, and filings which show common or
individual registration; (8) insurance documents including information regarding
which Respondent paid the premiums; (9) equipment, vehicles, and property which
have been commonly owned, leased or used by the Respondents; (10) tax returns
of the Respondents for 2001 through 2005, including documents showing the tax
preparer and the entity paying for any tax payments; and (11) common
solicitation or recruitment of business and personnel.
On September 6,
Respondent filed a petition to revoke the subpoenas asserting that the General
Counsel had waived its right to pursue NCC and NCHC, that the subpoenas sought
information which is irrelevant and outside the backpay period, and that the
subpoenas were improper and harassing, vague, overbroad, unduly burdensome, and
seeking information unrelated to this proceeding. On September 8, Judge Steven
Davis issued an Order on Petition to Revoke Subpoena directing the Respondent
to provide the information sought by the subpoenas, but for a more limited
timeframe than that sought by the counsel for the General Counsel.[18]
The hearing in
this matter, originally scheduled to commence on September 12, was thereafter
postponed, upon the request of the Respondent, to October 3 and then, to
October 11. On September 12, counsel for the General Counsel wrote to counsel
for Respondent requesting that it be provided with the subpoenaed documents on
a rolling basis as Respondent identified and reproduced those documents in
advance of the hearing. That request was reiterated by letter dated October 2.
At the
commencement of the hearing on October 11, counsel for the General Counsel
called for the production of documents and noted that Respondent’s identified custodian
of the records was not present. Counsel for the General Counsel acknowledges
that on the first day of trial, Respondent did produce certain documents,[19]
EVVNA’s initial and successor collective-bargaining agreements,[20]
as well as personnel handbooks, examples of letterhead used by Respondent and
voided blank checks. On October 12, counsel
for Respondent sent the General Counsel a letter which states, in relevant
part:
As a follow-up
to our telephone conversation this morning, Respondents produced a number of
documents at yesterday’s hearing in response to your subpoenas. You claim that our production is deficient. As I
informed you, we are willing to work with you and your office to produce
additional records responsive to your subpoenas.
It would be helpful to know exactly which specific documents you are seeking in
order for us to search for them and produce them to you in a timely fashion. I
also informed you that we would be amenable to schedule an on-site review of
any additional documents.
Also, we have
always been willing to produce Ms. Jackie Clay, NCC’s Senior Director of Human
Resources, to testify in this matter. Unfortunately, due to her vacation
schedule, Ms. Clay will be unavailable to testify until the week of October 30,
2006. It is important to reiterate, however, that Ms. Clay would not have been
able to testify at yesterday’s hearing because the parties agreed that we would
take testimony of the four nurses first. Accordingly, we propose one of the
following dates for Ms. Clay to testify in this hearing: November 3, November
10, November 16 or November 17.
Counsel for the
General Counsel responded by letter of October 12, again calling for production
of the documents listed in the subpoenas, noting that the trial had been
adjourned until October 20 and requesting that Respondent conduct a proper and
comprehensive review of its files and produce any documents responsive to the
subpoenas on that date. Counsel for the General Counsel further requested that
Respondent be prepared to identify those documents which had been reviewed and
make them available for possible inspection.[21]
The following
day, counsel for Respondent replied, attesting that there had been a good-faith
effort to comply with the subpoenas. In this regard, it was noted that
Respondent had provided documents including, but not limited to, letterhead, collective
bargaining agreements, employee handbooks, organizational charts, health care
information, board member information, recruitment advertisements, board
reports, and financial information. Counsel maintained that certain of the documents
sought by counsel for the General Counsel were no longer in the possession of
EVVNA, NCC, or NCHC,[22]
and stated, “[W]e will undertake a comprehensive search for documents responsive
to the outstanding requests.” Respondent reiterated that Clay was “more than
willing” to testify upon her return from her scheduled vacation, and argued
that the prejudice to counsel for the General Counsel in this regard was
“minimal.”
On October 20,
the second date of the hearing, Respondent produced additional documents,[23]
and further presented NCC Human Resources Director for Health Care William
Baez, who is Clay’s subordinate, to testify as custodian of the records regarding
his search for records responsive to the subpoena. Baez stated that some 1 to 2
weeks prior to his attendance at the hearing, Clay instructed him to search for
documents relating to EVVNA that were stored in his office. However, Baez had
never reviewed the subpoenas in connection with any document search or at any
other point prior to the hearing. Moreover, when asked whether he conducted a
search for particular items, as set forth in the subpoenas, he acknowledged
that he had not.[24]
I then heard
oral argument on the issues raised by the General Counsel with regard to
Respondent’s alleged noncompliance with the subpoenas. Counsel for the General
Counsel argued that Respondent failed to comply with the subpoenas by not
producing Clay or any other individual prepared to testify as the custodian of
the records in a timely fashion. On the initial hearing date, counsel for the
General Counsel was advised that Clay would not be available due to her
vacation plans. It was noted that, while Baez attempted to testify in Clay’s
stead, he admittedly was never shown the subpoenas and, further, not asked to
look for a number of items set forth therein. Counsel for the General Counsel
requested that I impose sanctions pursuant to Bannon Mills, Inc., 146 NLRB 611 (1964), and related cases, based
upon Respondent’s alleged failure to provide various documents sought by the
subpoenas. In particular, counsel for the General Counsel points to
Respondent’s failure to produce documents relating to tax preparation, filing
and payment, licenses, insurance policies, personnel actions, attorneys and
agents of the three named entities, as well as documents reflecting their
managerial personnel and organizational hierarchy.[25]
Counsel for
Respondent concedes that Clay was unavailable on the first day of hearing and
thereafter due to vacation plans, but asserts that in an effort to comply, it
produced Baez, who could testify, at least in part, to the documents. Respondent
further asserts that Clay would have testified at some later date, but the
General Counsel was unwilling to accept this request. Counsel asserts that Respondent
made a good-faith effort to search for items responsive to the subpoenas, and
asked counsel for the General Counsel to identify those specific items it was
seeking. Counsel for Respondent reiterated several arguments, originally raised
in its petition to revoke the subpoenas, that the requests were voluminous,
burdensome and ambiguous, and that the documents were of minimal importance to
the single-employer theory. Respondent further argues that it produced numerous
documents responsive to the subpoenas, and argues that because it has
substantially complied with the subpoenas, sanctions pursuant to Bannon Mills, supra, are unwarranted.
F. Evidence Presented in the Supplemental
Proceeding
The EVVNA
organizational chart which was produced by the Respondent at the instant
hearing shows that it is directed by a board of trustees. As of January 1,
2004, the EVVNA board, consisting of 12 members, included among its membership
Linder, Golden, Clay; NCC Manager Kathleen Dedrick, and NCC Corporate Counsel
Dan Williamson.[26] Monsignor
Linder continues to be the CEO of NCC, and, as the top management official at
EVVNA, he reports directly to the Board. The EVVNA executive director, Janet
Cavallo, reports directly to Linder. The EVVNA controller, Elizabeth Pinkham, reports
to Adrian Lobo, the chief financial officer of NCC, as well as to Cavallo.
The NCC’s human resources
(HR) department handles human resource matters for EVVNA. According to Baez,
this has been the case since he began working for NCC commencing in January
2002. EVVNA personnel files are kept and maintained in NCC corporate headquarters,
in the HR office.
Baez testified
that the NCC HR department recruits employees for EVVNA by placing
advertisements in newspapers and trade publications and by posting available
jobs on the NCC website. Baez is listed as the contact person for such recruits.
He will conduct an initial telephone screening, to see if the applicant has the
requisite qualifications and experience. If the applicant appears to be a good
match, he or she is referred to EVVNA Executive Director Cavallo for an
interview. Baez testified that Cavallo makes personnel decisions such as hiring
and firing on her own. According to Baez, unless there is some “questions from
a consultative approach,” the NCC HR department may not know about such decisions
until after they are made. According to Baez, Cavallo determines employee
compensation and start date. Baez testified that after a prospective employee
is offered employment, he then completes the process by creating a “new-hire”
packet, as well as the employee personnel record and medical file, which is
maintained in his office. According to Baez, the NCC HR department’s role is
“entirely consultative” regarding matters such as compensation, benefits,
employer relations, attendance, union relations, collective-bargaining
agreement interpretation and execution.
Baez’ testimony
regarding the “consultative” role of the NCC HR office is, in certain respects,
called into question by other record evidence. For example, in January 2006,
NCC HR Directors Clay and Faulks prepared and submitted a report to the NCC board
of directors listing that department’s “2005 Accomplishments.” In pertinent
part, this report contains the following summary:
Recruitment:
During 2005,
we continued aggressive recruitment methods to hire RN’s for EVVNA/CAH. The
efforts included better marketing materials, development of an extensive RN
mailing list, advertising on-line and through standard nurse publications,
presence at healthcare employment fairs and presenting two Open House opportunities.
In January of
2005, we had twenty RN’s in EVVNA/CAH. At the close of 2005, we had a roster of
twenty-two RN’s, with an additional four RN’s currently in the orientation
process. Given that ten RN’s resigned during 2005, this is an excellent accomplishment.
Due to aggressive marketing, we were able to replace the RN’s who resigned or
were terminated and hire additional RN’s to meet the needs of the Agency. In
fact, at this time, we have the necessary complement of RN’s to handle the existing
clients.
Retention:
To ensure that
we are competitive with the marketplace and able to attract and retain
experienced, competent nurses, we instituted salary and benefit increases for
RN’s and LPN’s.
We hosted a
Nurse Recognition Event in June of 2005 and the majority of EVVNA and Care at
Home nurses attended the event.
The report
further states that: “A new handbook for EVVNA and Care at Home was drafted in
2005. We are in the process of reviewing the draft and preparing a final copy
for distribution. An update of the NCC Handbook was drafted and will be finalized
during the first quarter of 2006.”
There is also
some record evidence that NCC managerial personnel have been involved in the
discipline determinations of EVVNA employees. For example, in June 2004, NCC Extended
Care Marketing Director Darnell Toliver issued a memorandum to an EVVNA
employee reprimanding her on her failure to attain the required number of
referrals and her poor attendance. A copy of this document was sent to “human resources.” In July 2004, Tolliver issued a discharge
memorandum to another EVVNA employee for an unacceptable referral rate, stating
in pertinent part: “your employment with New Community Corporation is being
terminated immediately.” A copy of this memorandum was sent to Clay, as well.
Baez testified, however, that it was not a common practice for the NCC HR
department to receive copies of such disciplinary notices for EVVNA employees.[27]
Moreover, there
is some evidence that NCC HR personnel actively participate in collective-bargaining
negotiations and investigate and respond to union grievances regarding EVVNA
employees. Baez testified that he attended one session in the most recent round
of collective bargaining between EVVNA and the Union, and Clay was present at
more that one. Baez further acknowledged
that the NCC HR department is notified when grievances are filed on behalf of
EVVNA employees. In this regard, the record reflects that Clay was involved in
investigating a grievance filed by an EVVNA employee, and responded to a union
information request in connection with that grievance. Clay forwarded
information regarding EVVNA employee absences to the
The NCC HR
department also receives and maintains the union dues deduction cards signed by
EVVNA employees. Baez provides the Union with monthly information regarding employee
status, and makes appropriate arrangements to have the dues deducted and
transmitted to the
EVVNA and NCC
have separate payrolls. At NCC, employees are paid on a bimonthly cycle and
EVVNA employees are paid on a biweekly basis. NCC corporate headquarters are located
at
NCC and EVVNA
employees receive their health insurance through the same vendor. The EVVNA
plan, which is negotiated with the
The record
reflects that employees have been transferred between NCC affiliates without
formal separation and hiring procedures, but that the accrual of benefits such
as sick and vacation leave is processed by and subject to the terms applicable
to each particular unit. For example, on October 7, 2004, Baez issued a memorandum
memorializing the transfer of a front-desk receptionist at the
As noted above,
NCC provides various services to EVVNA. According to Baez, these services would
be reflected in monthly budget reports, again an item which arguably would be
encompassed by the General Counsel’s subpoena.
While Baez has limited familiarity with such reports, he testified that
they would contain a description of services provided to EVVNA by NCC and their
cost. I note that a May 2003 NCC board report shows that NCC was continuing to
provide services to EVVNA in an annual budgeted amount of $410,279. Baez testified
that he has never seen any documentation reflecting a request by NCC that EVVNA
pay for such services or any other written agreement between the two entities.
With regard to
NCHC, Baez testified:
My understanding is that NCHC was an idea
or a concept that our former administrator had to consolidate all of the health
care at NCC meaning EVVNA, Varrick Home, the nursing with the day care under
one separate incorporated organization, but my further understanding is that
NCHC never happened, it never fruitioned, it never turned into anything.
NCC’s website, however, contains the
following information:
New Community
Health Care, which provides high quality and caring community-based health care
services to
Institutional
Facilities include the New Community Extended Care Facility, a skilled nursing
facility, and the
Respondent has
failed to explain this apparent discrepancy between Baez’ testimony and NCC’s
representations to the public about NCHC’s status.
Moreover, the
May 2003 NCC board report referred to above contains a NCHC executive administrator’s
report dated April 2003. The items reported under EVVNA include nurse recruitment
and the reopening of the union contract to increase wages, among others.
Elsewhere in this document, EVVNA employees are listed as part of NCC’s
employee census.
iii. analysis and conclusions
A. The Alleged Failure to Mitigate
Backpay Liability
Respondent
contends that the claimants improperly limited their job searches and/or did
not diligently look for work. In support of this argument, Respondent contends
that during the backpay period, the job market was extremely favorable for
nurses; that the claimants failed to seek staff nurse positions for which they
were qualified; that Savino and Schepers sought only part-time employment,
thereby further limiting their opportunities for employment; that Jones’ and
Lambert’s attendance at computer training courses effectively removed them from
the job market and generally, that the claimants did not make a reasonable job
search for interim employment.
As noted above,
it is well settled that employees must attempt to mitigate damages by using
reasonable diligence in seeking alternative employment.” NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965),
cert. denied 384 U.S. 972 (1966). The alternative employment must be
“substantially equivalent to the position from which [the claimant] was discharged
and suitable to a person of [their] background and experience. Southern Silk Mills, 116 NLRB 773 (1956). In determining whether positions are
substantially equivalent, the Board will consider various factors, including
the respective responsibilities and working conditions of each position, as
well as the desire and intent of the employees concerned. Mastro Plastics Corp., supra at 1359. In a backpay proceeding, the
burden is on the respondent employer seeking to mitigate its liability to
establish that the claimant willfully incurred a loss of interim earnings by a
clearly unjustifiable refusal to take desirable new employment, or that the
discriminatee could have done better than he did in taking particular interim
employment.” Moran Printing, Inc. 330
NLRB 376, 376 (1999) (internal quotations and citations omitted).
The record establishes that throughout the backpay period, all of the claimants applied for and received State unemployment benefits. The Board has long held that the fact that an employee has registered for benefits and searched for work through an appropriate State agency is prima facie evidence of a re