Ponce de Leon Healthcare, Inc.

National Labor Relations Board - Board Decisions

Jul 3, 2001

334 N.L.R.B. 66 (N.L.R.B. 2001)

334 NLRB No. 66
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Ponce de Leon Healthcare, Inc., a wholly owned sub-
sidiary of Chartwell Healthcare Inc., d/b/a El
Ponce de Leon Convalescent Center and Unite!
(Union of Needletrades, Industrial and Textile
Employees, AFL–CIO/CLC). Case 12–CA–19053
July 3, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
Upon a charge filed by UNITE! (Union of Nee-
dletrades, Industrial and Textile Employees, AFL–
CIO/CLC), the Union, on September 22, 1997, and an
amended charge filed on February 25, 1998, the Ge neral
Counsel of the National Labor Relations Board issued a
complaint on June 30, 1998, against Ponce de Leon
Healthcare, Inc., a wholly owned subsidiary of Chartwell
Healthcare Inc., d/b/a El Ponce de Leon Convalescent
Center, the Respondent, alleging that it has violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act.
On July 17, 1998, the Respondent filed an answer to the
complaint. On May 1, 2001, however, the Respondent
filed a motion to withdraw its answer, and on May 4,
2001, the Regional Director issued an order approving
withdrawal of the Respondent’s answer.
On May 11, 2001, the General Counsel filed a Motion
for Summary Judgment with the Board. On May 16,
2001, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed no
response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted.
On July 26, 1999, the Respondent filed for bankruptcy
protection under Chapter 7 of the Bankruptcy Code in
the U.S. Bankruptcy Court for the Northern District of
Texas. On August 11, 1999, J. Marc Hesse, Esq., re-
quested to withdraw as the Respondent’s counsel. On
January 11, 2001, the Regional Director issued an order
rescheduling the hearing, which was served on David
Elmquist, Esq., counsel for the designated Chapter 7
trustee of the Respondent’s bankruptcy estate. On May
1, 2001, the Respondent, through Elmquist, sought per-
mission to withdraw the Respondent’s answer to the
complaint after having been advised that withdrawal of
the answer would obviate the necessity of a hearing and
would result in the filing of a motion for summary judg-
ment.
The Respondent’s withdrawal of its answer has the
same effect as a failure to file an answer, i.e., the allega-
tions in the complaint must be considered to be true.1
Accordingly, in light of the Respondent’s withdrawal
of its answer to the complaint, we grant the General
Counsel’s Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corpo-
ration, with an office and place of business in Miami,
Florida, has been engaged in the business of operating an
extended care nursing facility located in Miami, Florida.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, derived gross revenues in excess of $100,000,
and purchased and received at its Miami, Florida facility
goods valued in excess of $50,000 directly from points
outside the State of Florida. We find that the Respondent
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:

1 See Maislin Transport, 274 NLRB 529 (1985).
2 Although the motion notes that the Respondent is in bankruptcy, it
is well established that the institution of bankruptcy proceedings does
not depriv e the Board of jurisdiction or authority to entertain and proc-
ess an unfair labor practice case to its final disposition. Phoenix Co .,
274 NLRB 995 (1985). Board proceedings fall within the exception to
the automatic stay provisions for proceedings by a go vernmental unit to
enforce its police or regulatory powers. See id., and cases cited therein.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
Kenneth Hawkins Nursing Administrator
Iris Rubio Social Worker

The following employees of the Respondent constitute
a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act:

Included: All full-time and regular part-time
employees employed in the kitchen department, die-
tary employees, helpers, laundry employees, mainte-
nance employees, maids and nurses aides employed
by the Respondent at 335 SW 12th Avenue, Miami,
Florida 33130.
Excluded: All other employees, guards and su-
pervisors as defined in the Act.

Since in or about May 1996, and at all material times,
the Union has been the designated collective-bargaining
representative of the unit employees employed by the
Respondent, and since then, the Union has been recog-
nized as the representative by the Respondent. This rec-
ognition has been embodied in a letter dated November
30, 1996, and a collective-bargaining agreement effective
by its terms from February 20, 1998, to March 1, 2001.
At all material times, since May 1996, based on Sec-
tion 9(a) of the Act, the Union has been the exclusive
collective-bargaining representative of the unit employ-
ees.
On or about September 8, 1997, the Respondent, by
Kenneth Hawkins, bypassed the Union and dealt directly
with the unit employees by asking employees at a meet-
ing whether the Respondent should shut down its opera-
tions or reduce its work force.
On or about September 8, 1997, the Respondent
changed the employees’ working conditions by laying
off employees without providing them and the Union
with 1 week’s notice as required by the collective-
bargaining agreement, and by laying off employees
without respect to their seniority.
These subjects relate to wages, hours, and other terms
and conditions of employment of the unit, and are man-
datory subjects for the purposes of collective bargaining.
The Respondent engaged in the conduct described above
without affording the Union an opportunity to bargain
with the Respondent with respect to this conduct and the
effects of this conduct.
Since on or about September 8, 1997, the Union, by
Dale Ewart, has requested that the Respondent furnish
the Union with the following information:

A list of employees laid off since September 8, 1997,
and to be laid off, their dates of hire and effective dates
of their layoffs.

The information requested by the Union is necessary
for and relevant to the Union’s performance of its duties
as the exclusive collective-bargaining representative of
the unit employees. Since September 8, 1997, the Re-
spondent has failed and refused to furnish the Union with
the information it requested.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been failing and refusing to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees, and has
thereby engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section 8(a)(5)
and (1) of the Act by unilaterally laying off employees
without respect to their seniority and without providing
them and the Union with 1 week’s notice, we shall order
the Respondent to offer the laid-off employees immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
previously enjoyed, and to make them whole for any loss
of earnings and other benefits they may have suffered as
a result of the Respondent’s unlawful conduct. Backpay
shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).3 We shall also order the Respondent to remove
from its files any reference to the unlawful layoffs of its
employees, and to notify in writing each of the employ-
ees who were unlawfully laid off that this has been done.
Further, having found that the Respondent has failed to
provide the Union with information that is necessary for
and relevant to the Union’s performance of its duties as
the exclusive collective-bargaining representative of the
unit employees, we shall order the Respondent to furnish
the Union with the information requested.
ORDER
The National Labor Relations Board orders that the
Respondent, Ponce de Leon Healthcare, Inc., a wholly
owned subsidiary of Chartwell Healthcare Inc., d/b/a El

3 The identification of the individuals who were laid off without re-
spect to their seniority is left to the compliance stage of these proceed-
ings.
PONCE DE LEON HEALTHCARE, INC.

3
Ponce de Leon Convalescent Center, Miami, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Bypassing the Union and dealing directly with unit
employees by asking employees at a meeting whether the
Respondent should shut down its operations or reduce its
work force.
(b) Unilaterally changing employees’ working condi-
tions by laying off employees without providing them
and the Union with 1 week’s notice, and by laying off
employees without respect to their seniority, without
affording the Union an opportunity to bargain with re-
spect to this conduct and the effects of this conduct.
(c) Failing to provide the Union with information that
is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining repre-
sentative of the unit employees.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the compliance
Order, offer the unlawfully laid -off employees full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights previously
enjoyed.
(b) Make whole the unlawfully laid -off employees for
any loss of earnings and other benefits they may have
suffered as a result of the Respondent’s unlawful con-
duct.
(c) Within 14 days from the date of the compliance
Order, remove from its files any reference to the unlaw-
ful layoffs, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
layoffs will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of the records
if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Furnish to the Union in a timely manner the follow-
ing information it requested on September 8, 1997: A list
of employees laid off since September 8, 1997, and to be
laid off, their dates of hire and effective dates of their
layoffs.
(f) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 8, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re -
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. July 3, 2001

Peter J. Hurtgen, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT bypass the Union and deal directly with
our unit employees by asking employees whether we
should shut down our operations or reduce our work
force.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4
WE WILL NOT unilaterally change our employees’
working conditions by laying off employees without
providing them and the Union with 1 week’s notice, and
by laying off employees without respect to their seniority
without affording the Union an opportunity to bargain
with respect to this conduct and the effects of this con-
duct.
WE WILL NOT fail to provide the Union with informa-
tion that is necessary for and relevant to the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
compliance Order, offer the unlawfully laid-off employ-
ees full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
previously enjoyed.
WE WILL make whole the unlawfully laid-off employ-
ees for any loss of earnings and other benefits they may
have suffered as a result of our unlawful conduct.
WE WILL, within 14 days from the date of the Board’s
compliance Order, remove from our files any reference
to the unlawful layoffs of our employees, and WE WILL,
within 3 days thereafter, notify each of the unlawfully
laid-off employees in writing that we have done so and
that we will not use the unlawful layoffs against them in
any way.
WE WILL furnish to the Union in a timely manner the
following information it requested on September 8, 1997:
A list of employees laid off since September 8, 1997, and
to be laid off, their dates of hire and effective dates of
their layoffs.

PONCE DE LEON HEALTHCARE , INC., A WHOLLY
OWNED SUBSIDIARY OF CHARTWELL
HEALTHCARE , INC., D/B/A EL PONCE DE LEON
CONVALESCENT CENTER