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,
Regency Heritage Nursing and
February 27, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On November 3,
2008, Administrative Law Judge Mindy E. Landow issued the attached
decision. The Respondent filed
exceptions and a supporting brief, and the General Counsel filed an answering
brief.
The National Labor
Relations Board1 has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings,2 and conclusions only to
the extent consistent with this Decision and Order. We agree with the judge that the Respondent
violated Section 8(a)(5) of the Act by refusing to deal with nonemployee Union Representative
Hector Pena3 and that this matter was
not deferrable to arbitration.4 However, for the following reasons, we
reverse the judge’s finding that the Respondent violated Section 8(a)(5) by
unilaterally terminating an alleged past practice of granting nonemployee union
representatives access to the Respondent’s facility.
The
Shortly after
March 1, Union Representative Pena visited the facility and met with the
facility’s administrator, Barry Rubin.
During their conversation, Pena introduced himself as the
The judge found
that, by directing Pena to leave the premises, the Respondent violated Section
8(a)(5) and (1) by unilaterally terminating an established practice of granting
the Union access to the facility. We
disagree.
There is no
dispute that the Respondent was not required to adopt its predecessor’s collective-bargaining
agreement or past practices. Nor is
there any dispute that the Respondent expressly notified prospective employees
that it would not adopt that agreement or those practices, with certain
specified exceptions not relevant here.
Thus, the issue is solely whether, after the Respondent began operating
the facility on March 1, Pena’s visits created an established condition of
employment that the Respondent could not unilaterally change.
As the party
alleging an established past practice, the General Counsel has the burden of
proof. See
We find that the
General Counsel has failed to adduce sufficient evidence to meet this
burden. As discussed above, Pena visited
the facility approximately once a week between March 1 and the end of May. He met with employees in the cafeteria and
outside the facility. Other than his
initial introduction to Rubin shortly after March 1, however, there is no
evidence that the Respondent was, or reasonably should have been, aware of
these visits. Although Pena testified
that Rubin did not place any limits on Pena’s access rights when he met with
Rubin shortly after March 1, there is no evidence that they discussed access
rights at all, or that Rubin gave any indication that Pena was permitted to
visit the facility. Thus, we find that
the General Counsel has not provided sufficient proof that there was a regular
and consistent past practice, of which the Respondent was aware, of union
access to the facility after March 1.
Accordingly, we dismiss the complaint allegation that the Respondent
unlawfully terminated such a practice unilaterally.
ORDER
The National Labor
Relations Board orders that the Respondent, Regency Heritage Nursing and
1. Cease and desist from
(a) Refusing to deal with union representatives
duly appointed by the
(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 designed
to effectuate the policies of the Act.
(a) Recognize and deal with Hector Pena as a duly-appointed
representative of the Union for a bargaining unit of the Respondent’s employees,
providing him access to the Respondent’s facility to perform his representative
duties in accord with the provisions of the parties’ current
collective-bargaining agreement, and, within 10 days of this decision, notify
the Union in writing that it no longer has any objection to dealing with Pena
and that it will do so on request.
(b) Within 14 days after service by the Region,
post at its facility in
(c) 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 attesting to the
steps that the Respondent has taken to comply.
Dated,
Wilma B.
Liebman, Chairman
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 deal with duly
appointed representatives of SEIU 1199, New Jersey Health Care Union (the
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 recognize and deal with Hector
Pena as a duly-appointed representative of the Union for a bargaining unit of our
employees, providing him access to our facility to perform his representative
duties in accord with the provisions of our current collective-bargaining
agreement with the Union, and, we will,
within 10 days of this decision, notify the Union in writing that we no longer
have any objection to dealing with Pena and that we will do so on request.
Regency Heritage Nursing And
Lisa Pollack, Esq., for the General Counsel.
Morris
Tuchman, Esq. (Law Offices of Morris Tuchman), of
William
Massey, Esq. (Gladstein, Reif & Meginniss, LLP), of
DECISION
Statement of the Case
Mindy
Findings of Fact
i. jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act.
ii. labor organization status
Respondent admits, and I find, that the
iii. alleged unfair labor practices
A. The Parties’ Collective-Bargaining Relationship
The
A designated Union representative shall have the right to visit the Employer’s establishment at reasonable times in order to investigate matters relative to wages, hours, working conditions and grievances. Such visits, however, shall not be made at such times or in such manner as shall interfere with the proper management and operation of the Employer. The Union representative shall notify the Human Resources Director in advance to arrange a time and date and describe the nature of the intended visit.
Respondent began operating the facility on March 1, but
did not assume the predecessor’s contract with the
B. The 10-Day Strike Notice and Events of June 21 and 22
A bargaining session which was held on June 19, was attended
by Pena, Union President Milly Silva, secretary-treasurer, Marvin Hamilton, Counsel
Ellen Dichner, and about ten employees for the
Pena, whose testimony is corroborated in all material respects
by
On cross examination, Gross was asked by counsel for the Charging Party as follows:
Q. After the
A. Yes.
On June 22, Respondent distributed a letter signed by Gross to its employees stating, inter alia, that “Union representatives, members and anyone on strike are not employees of Regency Heritage and are not permitted on our property.” On that day, Pena went to the facility and stood on the sidewalk, which is public property adjoining the facility, and distributed flyers to employees. Facility Managers Raccuia and Al Morris came out and told him that he would have to leave or they would call the police. Pena said that he was on public property, and that if they wanted to call the police, they should do so. The police were summoned, viewed the situation, and left. Pena was later joined by Union Representatives Zoe Baldwin and James Macgregor. The police came on two subsequent occasions that day; on both occasions they said that the union representatives could remain because they were on public property.
C. Events of June 23 and 24
It is alleged by the Respondent, and denied by Pena and Hamilton, that while at the facility on June 23, Pena held up a sign stating “Fatah,”[5] which would be offensive to residents of the Regency Heritage and their families and guests. Respondent asserts that this is the reason that it has barred Pena from its facility.
Pena testified that he arrived at the facility on the
morning of June 23 at about 10:25 a.m.;
An unstable workforce would put
Regency Heritage residents at risk!
New Management is causing an Exodus of quality caregivers.
The new operator of the for-profit Regency Heritage nursing home introduced himself by slashing low wage worker’s pay by up to $5 an hour. Their actions are causing an exodus of quality caregivers who have devoted more than 15 years to serve our loved ones.
Regency Heritage can’t become a revolving door of strange workers.
Our residents need caregivers they have spent years getting to know. If management values the continuity of care of our loved ones, they will pay good wages and benefits to keep good caregivers who our loved ones know and love.
Count on me
To stand with Regency Heritage workers to
Hold management accountable to
Quality jobs and quality care.
Below was a space for residents’ family members to list their name, address, and telephone number and to place a check next to three choices:
I will call David Gross to tell him to do the right thing.
I will stop by the strike line to support our care givers
June 30
. . . .
I will stop by the strike line to support our care givers
July 1
. . . .
Pena, corroborated by
Pena denied displaying a sign bearing the word “Fatah” on this or any other occasion. He further testified, that, at this point in time, he did not even know what the word signified. Pena further denied that he made any threats to anyone, and stated that he was not approached by any representative from management or by the police that day. He and Hamilton left the facility together, at approximately 2 p.m.
On the following day, June 24, Pena arrived at the
facility at about noon accompanied by his wife, Adelya Pena. When he arrived he
met with Baldwin and the union representatives stood on public property and
asked residents’ family members to sign the petition signifying their support
for the
Later in the day a gentleman, who at the time was unknown to Pena (this individual was subsequently identified as Steven Flaks, a family member of one of the facility’s residents) who was driving a black Mercedes, passed by Pena, who asked him to sign the flyer. Flaks then asked Pena, “Where is your Fatah sign?” Pena replied, “What sign?” and Flaks left without answering. Pena asserts that he had never previously seen Flaks.
Gross testified that Flaks’ father is a resident at the facility and that he often attends religious services with his father at the facility’s synagogue on Saturday mornings at 10 a.m. About 1 week after the alleged incident, Gross was approached by a member of his management staff, along with Flaks, who told Gross that on Saturday, June 23, at about 10, as he was driving into the facility, he saw a man standing outside the building holding a sign that said “Fatah.” When Flaks went into the facility he approached the first employee that he saw, who has since been identified as Frank Foray, and asked Foray to go outside to double check what he had seen. According to Gross, Foray went outside “. . . and confirmed for him that he saw it. That, in fact, it was a Union representative that was standing outside.”
Gross testified further that Flaks told him that as he was leaving the facility that day or the next day he saw the individual who had been carrying the sign, but now was requesting his signature, and Flaks asked him where his sign was. According to Gross, he also spoke to Foray, who provided a description which matched Pena’s, and on the basis of these two conversations, and his knowledge that Pena was at the facility on June 23 and 24, he determined that Pena was the individual who was carrying the “Fatah” sign.
In answer to various questions from counsel from the Charging Party, Gross’ memory began to fail him and he became repeatedly argumentative and unresponsive.[7] What can be gleaned from his testimony is that he was not present at the facility on June 23 or 24, and did not receive a report from anybody at the facility about the alleged incident until “at some time after the Fatah sign incident . . . .” Initially Gross testified that Flaks had told him that the sign he saw was in Arabic; he later changed his testimony in this regard.[8] After Gross decided that it was Pena who had carried the “Fatah” sign, he resolved that he would not allow him access to the Regency Heritage to meet with employees for representational purposes. The record does reflect however, that Pena did participate in most of the negotiations for a collective-bargaining agreement, which were held off site. Pena was also allowed on Regency Heritage premises on one occasion to meet with employees to explain the proposed collective-bargaining agreement and obtain employee ratification of the contract.
D. The
About 2 weeks after the June 23 leaflet distribution, Union
President Silva told
According to
Adelya Pena testified that she was not at the facility on
June 23.[10]
She spent the morning shopping, paying a credit-card bill, and then met her
husband for lunch at approximately 3 p.m. Adelya Pena further testified that,
on Sunday, June 24, she accompanied her husband to Respondent’s facility.
Baldwin was there as well;
By letter of July 12 to Gross,
Milly Silva asked me to investigate your complaint that Hector
Pena had some involvement with distributing a leaflet at Regency Heritage that
had Fatah on it. I have spoken at length with Hector and others involved in
literature distribution at Regency Heritage and am confident that Hector did
not distribute the Fatah document or have anything to do with it. He had
distributed another
The
In response, Respondent’s counsel Tuchman wrote to
Your letter does not reflect that you spoke with David Gross and/or his witnesses to the events surrounding the “Fatah” sign allegedly held up by Mr. Pena. I believe that your investigation is clearly incomplete without these witnesses being followed up on. Since Mr. Pena’s job is on the line, it is hardly surprising that he would deny holding up such a sign on a Saturday morning as congregants went into the facility Synagogue. I am certain that you do not intend to “whitewash” the events.
E. The November 13 Arbitration
On November 13, the parties held an arbitration regarding
Pena’s explusion from two other facilities owned by Gross, the
At the arbitration, both Flaks nor Foray were called as witnesses by the Employer. Neither testified at the hearing herein; however, counsel for the Charging Party and the Respondent stipulated that their testimony, which was sworn and subject to cross-examination, was as follows: [11]
At the November 13, 2007 arbitration hearing, Stephen Flaks (“he”) testified that:
-He drive into the facility around 10 a.m. on Saturday to attend services with his father
-He didn’t stop his car, a black Mercedes, while driving in, but slowed down and observed a man on the right hand side with a sign that said “Fatah” in English
-He had no idea of what the man was wearing; the man was wearing pants and a shirt
-A couple of hours later, around lunchtime, he asked employee Frank to “go out front and see what’s going on because something weird is going on.”
-He had known Frank, an employee, for a few months.
-He was not sure when Frank left to go outside. Frank went outside when asked by Flaks.
-Frank came in and said, “I saw a guy holding a Fatah sign.”
-He said, “Good, I’m not crazy then.”
-When he left the facility around 2:30 p.m., the same man from the morning was there with a blond lady. The man was on the opposite side.
-He returned to the facility on Sunday before noon and saw the same man from Saturday, with at least two others, including the same blond lady from Saturday. -He didn’t stop his car on the way in and didn’t see any signs.
-He left the facility a couple of hours later; he saw no
signs when he drove out. —On his way out he stopped his car and asked the man,
“What’s going on?” He was told that the
-He spoke to Gross about the man with the Fatah sign.
-The man had a little bit of a beard; the man was not wearing a purple t-shirt, purple hat or dark glasses. The man was 5’6” or 5’8” and had dark hair.
-He never saw Marvin Hamilton.
2) At the November 13, 2004 arbitration hearing, employee Frank Foray (hereinafter “he”) next testified that:
-He was employed by the Employer for 8 months, worked from 9 a.m. -5 p.m. with every other weekend off.
-He left the job because of an argument.
-He had known Flaks for a couple of months prior to 6-07.
-Flaks approached him on Sat. at noon and asked, “Do you know what’s going on? There’s a guy in front. Do you mind checking it out for me?”
-He and Flaks had this conversation outside the facility. He walked to the front and saw a man on the right. The man had a sign that said “Fatah.” The sign was in English; he knew what the word meant because he understands some Arabic.
-He stayed outside for 5-10 minutes looking at the man.
-He went back inside and told Flaks about the sign and what it said.
-He never saw the sign again.
-He had seen this man once before, outside the facility earlier that same day at 6:40 a.m. when he drove into the facility with his mother. There was no blond at 6:40 a.m.
-He was not sure what the man was wearing.
-The third time he saw the man outside was around 1:30 p.m.; the man was with the blond lady; the man had the same sign, but it was folded up.
-He asked the man, “What are you doing?” The man said he
worked for the
-He did not report this “Fatah sign” incident to anybody (besides S. Flaks). David Gross later approached him to talk about it. He never saw the man again.
-The man had a goatee; the man was not wearing a purple t-shirt, purple hat or dark glasses.
-He did not see Marvin Hamilton at any time.
The stipulation further provides that, at the arbitration hearing, both Flaks and Foray identified Hector Pena as “the man.” Pena was present in the hearing room when both witnesses made their respective identifications.[12]
F. The Standstill Agreement and Subsequent Collective-Bargaining Agreement
On July 2 (that is, prior to the arbitration referenced above)
under the auspices of Arbitrator Martin F. Scheinman, the Regency Heritage and
the
The record establishes that, pursuant to this standstill
agreement, the
The parties acknowledge each of them has experienced reports from co-workers, supervisors and family members of residents relaying accounts of comments that are unacceptable. Racial, ethnic and cultural slurs are unacceptable and each party, upon notice of such complaints from the other party, shall investigate and use their best efforts to stop such behavior, if found to be true. It is expressly understood that comments and slurs have no place in these parties’ relationships. Employees found to have engaged in these unacceptable behaviors shall be removed from their positions working for the Home or servicing the employees working at the Home.
This agreement further provided that the arbitrator “shall be available to mediate, as requested by either side.”
On November 13, the parties extended the standstill agreement until December 31, 2008. The extension to the standstill agreement provides that: “Disputes concerning the terms of this extension agreement shall be resolved by binding arbitration it being understood that the arbitrator shall have no authority to set the actual terms for a comprehensive agreement.”
Thereafter, the Regency Heritage and the
iv. analysis and conclusions
A. Pena Did Not Display a Sign Bearing an Offensive Message on June 23
There is a clear credibility issue herein regarding the allegation that Pena carried a “Fatah” sign at the facility, a home that caters mainly to people of the Jewish faith and heritage. Pena denies having such a sign and Hamilton, who was with him virtually all day on June 23, also denies seeing any such sign displayed. The only testimony supporting the existence of such a sign was from Gross, whose sole sources of information regarding this matter were the after-the-fact accounts offered by Flaks and Foray.
I found both Pena and Hamilton to be credible and believable witnesses, who appeared to be testifying in an honest and forthright manner on both direct and cross examination. In addition to finding them to be credible witnesses, the surrounding facts and circumstances tend to support their account of events. In particular, I find that the Respondent’s allegation (and Flax and Foray’s testimony at the arbitration) defies logic. Pena and Hamilton were at the facility on June 23, specifically to obtain the signatures and support of the residents’ families to “stand with” the workers. It is difficult to believe that with that purpose in mind, Pena would display a “Fatah” sign at a facility with a Jewish population and tradition, which clearly could be construed as offensive to the residents and their family members and other guests. If Pena had displayed such a sign, it is highly unlikely that he would have been able to obtain signatures from resident’s family members. As counsel for the Charging Party states in his brief: “It is illogical and incredible that he would display a sign that would likely offend the very same individuals whose support he was soliciting.”
Further, although I cannot make a determination regarding
demeanor so as to credit or discredit unseen witnesses, I note that both Flaks
and Foray were unable to describe what the sign holder was wearing. I find that
a bright purple t-shirt and hat bearing union insignia would be memorable under
these circumstances.[14] In addition, although
As stated above, I found Pena and Hamilton to be credible
and believable witnesses. On the other hand, I found Gross to be an evasive and
argumentative witness whose testimony lacked reliability. An additional factor
that detracts from the Respondent’s defense herein is that, admittedly, Gross
had previously banned the union representatives from the facility after the
On the basis of all of the above, I find that the record as a whole, including the credible testimony, in conjunction with the inherent probabilities of the situation, establishes that Pena did not carry a “Fatah” sign at the Respondent’s premises on June 23, as Respondent has alleged. I further conclude that Respondent’s decision to bar union representatives from its facility stemmed from the issuance of the strike notice and the impending threat of a strike.
B. Respondent
Unilaterally Changed its Past Practice of Allowing Union Representatives Access
to its Facility, in Violation of the Act
The predecessor’s contract with the Union provided that
prior to visiting the facility, the
Union visitation is a mandatory subject of bargaining. American Commercial Lines, 291 NLRB
1066, 1072 (1988); The
C. Respondent Unlawfully Banned Pena from its Facility and Refused to Deal with Him
Moreover, Respondent has presented no legally cognizable defense for its continuing refusal to deal with Pena regarding the terms and conditions of unit employees. As the Board has held:
Section 7 of the Act encompasses the right of employees, acting through their union, freely to select their representatives for the processing of grievances and discussion of workplace matters. . . Although a party may, under certain circumstances, refuse to meet with another party’s bargaining representatives, the party making such a refusal must establish that the representatives which whom it refuses to meet have created by their own actions an atmosphere of such ill will that good-faith bargaining is virtually impossible or that their participation in bargaining otherwise represents a clear and present danger to the bargaining process.
Missouri Portland Cement Co., 284 NLRB 432, 433 (1987). See also KDEN Broadcasting Co., 225 NLRB 25, 35 (1976) (requiring persuasive evidence that the presence of the banned representative would create ill-will and make good faith bargaining impossible) (emphasis in original).
In those situations where the Board has sanctioned an employer’s refusal to deal with a particular union representative, the conduct at issue is generally violent and/or threatening, or of a similarly egregious nature. For example, in King Scoopers, Inc., 338 NLRB 269 (2002), the Board found that an employer had not violated the Act when it condoned an employer’s refusal to deal with a union representative who had previously been discharged for misconduct including throwing a meat hook at an employee, throwing a 40-pound piece of meat into a saw, thereby breaking its blade, throwing a knife into a box, and threatening a supervisor. The Board found that, in light of this individual’s apparent propensity to react violently during confrontations, employer agents assigned to deal with him might be reasonably apprehensive and preoccupied with their safety if they did not agree during adversarial meetings. See also Fitzsimmons Mfg. Co., 251 NLRB 375, 379 (1980), enfd. 670 F. 2d 663 (6th Cir. 1983) (employer lawfully refused to deal with union representative who physically assaulted employer’s personnel director at grievance meeting); Sahara Datsun, 278 NLRB 1044 (1986), enfd. 811 F.2d. 1217 (9th Cir. 1987) (conduct outside the bargaining process justified an employer’s refusal to deal with a union representative where that individual disseminated a newsletter accusing company owners of involvement in prostitution and the use and sale of cocaine; union representative also made unsubstantiated accusations to employer’s bank that certain management officials, including those expected to be involved in bargaining, had engaged in fraudulent financial practices).
Here, as I have found, Pena engaged in no such improper conduct. Moreover, even if I were to find that he had, in fact, displayed the “Fatah” sign, I would be obliged to conclude that, as a matter of law, this would not excuse Respondent from its continuing refusal to deal with him, based upon the standards as set forth above. In this regard, I note that while a display of the word “Fatah” might well have been deemed offensive by residents of the Regency Heritage and their family members, and do not condone such conduct, the sign was, by all accounts, displayed on public property. Moreover, it contained no threat of violence; nor did it contain any specific reference to the Regency Heritage, or any of its managers.
Further, Respondent has not shown that Pena’s alleged misconduct would have impeded the bargaining process. In fact, the record shows to the contrary, that notwithstanding the allegations of misconduct, Pena attended the majority of the collective-bargaining sessions between Respondent and the Union, and, moreover, was instrumental in having the proposed agreement ratified by the bargaining unit. Thus, Respondent has failed establish a legitimate basis for its continuing refusal to deal with Pena. Accordingly, I find that by refusing to deal with Pena, a union representative duly appointed to represent Respondent’s employees, Respondent has violated Section 8(a)(1) and (5) of the Act. KDEN Broadcasting Co., supra.
D. This Matter is Not Appropriate for Deferral
In its answer to the complaint, and again in its brief Respondent contends that this matter is appropriate for deferral. There are two prongs to this argument. As an initial matter, Respondent argues that the instant dispute is covered by the standstill agreement which, it contends, is a bilateral solution to the issue of Pena’s rights to represent employees. In addition, Respondent cites to the parties’ collective-bargaining agreement which contains a broad grievance arbitration provision.
It is well settled that the Board has “considerable discretion to defer to the arbitration process when doing so will serve the fundamental aims of the Act.” Wonder Bread, 343 NLRB 55, 55 (2004) (citations omitted). As the Board has held, deferral is appropriate when the following factors are present:
[T]he dispute arose within the confines of a long and productive collective-bargaining relationship; there is no claim of employer animosity to the employees’ exercise of protected statutory rights; the parties’ agreement provides for arbitration of a very broad range of disputes; the arbitration clause clearly encompasses the dispute at issue; the employer has asserted its willingness to utilize arbitration to resolve the dispute; and the dispute is eminently well suited to such resolution.
The standstill agreement states that employees of either
the Respondent or the
Finally, and in any event, it is too late to rely upon the standstill agreement to provide a vehicle to arbitrate the dispute at issue here. [18]
Respondent further argues that the matter should be deferred to arbitration based upon the collective-bargaining agreement which has since been entered into by the parties. As noted above, however, the applicable grievance arbitration provision pertains only to those disputes arising during the term of the agreement. Thus, the collective-bargaining agreement does not, by its terms, provide a mechanism either to resolve the underlying statutory issue or to provide an appropriate remedy for the alleged violations herein.
Accordingly, I conclude that deferral is not appropriate in this instance.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act.
2. The
3. By barring union representatives from its facility since on or about June 21, Respondent has violated Section 8(a)(1) and (5) of the Act.
4. By refusing to deal with Hector Pena, a union representative duly appointed to represent Respondent’s employees, at its facility since on or about June 21, Respondent has violated Section 8(a)(1) and (5) of the Act.
The Remedy
Having found that the Respondent engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The standard remedy to correct an employer’s unilateral changes is to return to the status quo which existed prior to the institution of the changes in question. However, as noted above, the parties have since entered into a collective-bargaining agreement containing a union visitation clause which differs in certain material respects from the status quo as it existed prior to Respondent’s unlawful unilateral change. In this circumstance, the standard remedy is no longer appropriate, since the matter has been bargained and agreed upon by the parties.[19] Accordingly, I recommend that the Respondent be ordered to rescind the restrictions that it imposed upon the access of union representatives to its facility as well as those it imposed upon its dealings with Pena, and his rights to be at its facility, consistent with the undertakings contained in the parties’ collective-bargaining agreement and that it notify the Union, within 14 days of the date of this decision, that it has done so.
On these findings of fact, conclusions of law, and on the entire record, I issue the following recommended[20]
ORDER
The Respondent, Regency Heritage Nursing and
1. Cease and desist from
(a) Denying duly appointed union representatives access to
its facility in a manner inconsistent with the parties’ collective-bargaining
agreement, without consultation and good-faith bargaining with the
(b) Refusing to deal with Hector Pena, as a union
representative duly appointed by the Union to represent its employees, in a
manner inconsistent with the parties’ collective-bargaining agreement, without
consultation and good-faith bargaining with the
(c) 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 designed to effectuate the policies of the Act.
(a) Afford union
representatives access to its facility, consistent with the provisions of its
collective-bargaining agreement with the Union and notify the Union in writing
within 14 days of the date of this Decision that it has done so, and offer to
bargain in good faith with the
(b) Afford Pena access to its facility, and deal with Pena as a duly appointed representative of its employees, consistent with the provisions of its collective-bargaining agreement with the Union and notify the Union in writing within 14 days of the date of this decision that it has done so, and offer to bargain in good faith with the Union regarding any future restrictions on access, or dealings with, Pena.
(c) Within 14 days
after service by the Region, post at its facility in
(d) 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 attesting to the steps that the Respondent has taken to comply.
Dated,
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 unilaterally
change existing conditions and practices regarding access to our premises by
SEIU 1199 New Jersey Health Care Union (the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will restore the practices and conditions that affect the Union’s access to our premises consistent with our contractual agreement with the Union; we will deal with duly appointed union representatives and we will notify the Union, in writing, that we have done so and that , on request, we will bargain with the Union prior to making such changes.
Regency Heritage Nursing and