RC Operator LLC d/b/a Willow Terrace

National Labor Relations Board - Unpublished Board Decisions

Jun 1, 2011

04-CA-037630 (N.L.R.B. Jun. 1, 2011)

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
RC OPERATOR, LLC
d/b/a WILLOW TERRACE
and Cases 4-CA-37630
4-CA-37666
NATIONAL UNION OF HOSPITAL AND 4-CA-37715
HEALTH CARE EMPLOYEES DISTRICT 4-CA-37739
1199C, AFSCME, AFL-CIO 4-CA-37746
4-CA-37778
DECISION AND ORDER
Statement of the Cases
On January 21, 2011, RC Operator, LLC d/b/a Willow Terrace, the
Respondent, National Union of Hospital and Health Care Employees District
1199C, AFSCME, AFL-CIO, the Union, and the Acting General Counsel of the
National Labor Relations Board entered into a Formal Settlement Stipulation,
subject to the Board’s approval, providing for the entry of a consent order by the
Board and a consent judgment by any appropriate United States Court of
Appeals. The parties waived all further and other proceedings before the Board
to which they may be entitled under the National Labor Relations Act, as
amended, and the Board’s Rules and Regulations, and the Respondent waived
its right to contest the entry of a consent judgment or to receive further notice of
the application therefor.
The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The Formal Settlement Stipulation is approved and made a part of the
record, and the proceeding is transferred to and continued before the Board in
Washington, D.C., for the entry of a Decision and Order pursuant to the
provisions of the Formal Settlement Stipulation.
Based on the Formal Settlement Stipulation1 and the entire record, the
Board makes the following:
Findings of Fact

1 The stipulated Order has been corrected to substitute language appropriate
where the respondent is an employer (“officers, agents, successors, and
assigns”).
2
1. The Employer’s business
The Respondent is a Delaware limited liability company with its principal
office in Philadelphia, Pennsylvania. It operates a nursing home at One Penn
Boulevard, Philadelphia, Pennsylvania (the Facility), where it is engaged in
providing long-term care and assistance to residents.
Based on a projection of its operations since about July 2, 2010, at which
time the Respondent commenced its operations at the Facility, the Respondent,
in conducting operations there, will annually receive gross revenues in excess of
$100,000 and purchase and receive at the Facility goods valued in excess of
$5000 directly from points outside the Commonwealth of Pennsylvania.
At all material times, the Respondent has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The labor organization involved
At all material times, National Union of Hospital and Health Care
Employees District 1199C, AFSCME, AFL-CIO has been a labor organization
within the meaning of Section 2(5) of the Act.
3. The appropriate unit
The following employees of the Respondent, the unit, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time CNAs, RCNAs, Recreation Aides,
Activity Aides, Unit Clerks, Housekeeping employees and Dietary
employees employed by Respondent at the Facility, excluding all other
employees, guards and supervisors as defined in the Act.
On August 30, 2010, the Union was certified as the exclusive collective-
bargaining representative of the unit.
At all times since August 30, 2010, based on Section 9(a) of the Act, the
Union has been the exclusive collective-bargaining representative of the unit.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation,
and the entire record, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations Board orders that:
The Respondent, RC Operator, LLC d/b/a Willow Terrace, its officers,
agents, successors and assigns, shall:
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1. Cease and desist from
(a) (1) Indicating to employees that it would be futile for them to select
National Union of Hospital and Health Care Employees District 1199C, AFSCME,
AFL-CIO (the Union) as their collective-bargaining representative; (2)
interrogating employees concerning their protected concerted activities and their
Union activities; (3) creating the impression among employees that their
protected concerted activities and their Union activities are under surveillance;
(4) threatening employees that they may be discharged because they engaged in
protected concerted activities or Union activities; and (5) telling employees that
they have been discharged because they engaged in protected concerted
activities or Union activities or because other employees were engaging in
protected concerted activities or Union activities.
(b) Discharging or laying off employees, or extending their probationary
period, or otherwise discriminating in regard to their hire or tenure of employment
or any other term or condition of employment, in order to discourage membership
in the Union or in any other labor organizations.
(c) Failing and refusing to bargain collectively and in good faith with the
Union as the exclusive collective-bargaining representative of its full-time and
regular part-time CNAs, RCNAs, Recreation Aides, Activity Aides, Unit Clerks,
Housekeeping employees and Dietary employees employed by the Respondent
at its One Penn Boulevard, Philadelphia, Pennsylvania facility (the Facility) (the
unit employees), by (1) failing to respond in a timely and complete manner to the
Union’s request for bargaining for a collective-bargaining agreement covering the
terms and conditions of the unit employees; (2) failing to provide, or to timely
provide, to the Union requested information that is relevant and necessary for the
Union to perform its duties as the exclusive collective-bargaining representative
of unit employees; and (3) failing and refusing to bargain collectively and in good
faith with the Union by making changes related to the wages, hours, and other
mandatory terms and conditions of employment of unit employees without first
notifying the Union and without affording the Union an opportunity to bargain with
the Respondent with respect to this conduct.
(d) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the Union or any other labor organization, to
bargain collectively through representatives of their own choosing and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to effectuate the
policies of the Act:
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(a) Upon request, bargain collectively and in good faith with the Union
concerning wages, hours, and other terms and conditions of employment of all
the unit employees in the bargaining unit described below, and, if an
understanding is reached, embody such understanding in a written, signed
agreement:
All full-time and regular part-time CNAs, RCNAs, Recreation Aides,
Activity Aides, Unit Clerks, Housekeeping employees and Dietary
employees employed by Respondent at its One Penn Boulevard,
Philadelphia, Pennsylvania facility, excluding all other employees, guards
and supervisors as defined in the Act.
(b) Continue to bargain with the Union as the exclusive collective-
bargaining representative of the unit employees as if the initial year of
certification in the unit will not expire for 13 months, i.e., until September 30,
2011.
(c ) Make whole the following employees for loss of pay they suffered by
reason of the discrimination against them, by payment to them of the amounts
set forth opposite their respective names and on or before the dates set forth in
the Schedule that follows. All payments, in the form of separate checks made
out to each of the employees named in the Schedule, will be made to Region
Four of the Board at 615 Chestnut Street, 7th Floor, Philadelphia, PA 19106.
The Respondent will make appropriate withholdings from the payment to each
named employee. If any installment is not paid on or before the date due, the full
unpaid amount shall become immediately due and payable and the Board may,
without further notice, institute proceedings against the Respondent for the
collection of the full indebtedness remaining due, with additional interest due on
the entire unpaid balance from the date of default until full payment is received,
computed in accordance with the formula set forth in New Horizons for the
Retarded, Inc., 283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB No. 8 (2010). In order to ensure full
payment under this Settlement Stipulation, the Respondent, as security for full
payment, has executed a Confession of Judgment.2
Schedule
Employee Name Amounts Due and Dates of Payment TOTAL
January 21,
2011
February 21,
2011
March 21,
2011
April 21,
2011
May 21,
2011
Keith Davis $1253.33 $1253.33 $1253.33 $1253.33 $1253.33 $6266.65
James Jones $981.89 $981.89 $981.89 $981.89 $981.89 $4909.45

2 The Confession of Judgment was filed with the U.S. District Court Eastern
District of Pennsylvania on January 21, 2011 and a copy is attached to the
Settlement Stipulation as Exhibit D.
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Kenise Jones-
Kennedy
$2283.32 $2283.32 $2283.32 $2283.32 $2283.32 $11,416.60
Tamika
Kennedy
$1010.49 $1010.49 $1010.49 $1010.49 $1010.49 $5052.45
Tracey McKoy $2506.14 $2506.14 $2506.14 $2506.14 $2506.14 $12,530.70
Barbara Moore $1122.81 $1122.81 $1122.81 $1122.81 $1122.81 $5614.05
TOTAL $9157.98 $9157.98 $9157.98 $9157.98 $9157.98 $45,789.90
(d) Upon request by the Union, bargain with the Union concerning the
following unilateral changes affecting unit employees:
(1) increases in employee-paid insurance premium rates for
dental and vision health benefits for unit employees;
(2) providing access at the Facility to representatives of
insurance companies providing disability, accident, cancer
and life insurance, and making these representatives
available to unit employees to arrange the purchase of
insurance;
(3) elimination of break rooms at the Facility.
(e) Within 14 days of service by the Region, post at the Facility copies of
the attached Notice to Employees marked “Appendix A.” Copies of the Notice,
on forms provided by Region Four, after being signed by the Respondent’s
authorized representative, 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. In addition to physical posting of paper
Notices, Notices shall be distributed electronically, by email, posting on an
intranet or an internet site, or by other electronic means, if the Respondent
customarily communicates with its employees by such means. The Respondent
will take reasonable steps to ensure that the Notices are not altered, defaced or
covered by any other material. If, during the pendency of these proceedings, the
Respondent goes out of business or closes the Facility, it shall duplicate and
mail, at its own expense, a copy of the Notice to all current employees and
former employees employed by the Respondent at any time since August 18,
2010.
(f) 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.
(g) Within 14 days of the Board’s Order, remove from the Respondent’s
files any reference to the layoffs of Keith Davis and Barbara Moore and the
discharges of James Jones, Kenise Jones-Kennedy, Tamika Kennedy and
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Tracey McKoy, and within 3 days thereafter, notify those employees, in writing,
that this was done and that the layoffs or discharges will not be used against
them in any way.
Dated, Washington, D.C., June 1, 2011
__________________________________
Wilma B. Liebman, Chairman
__________________________________
Craig Becker, Member
__________________________________
Mark Gaston Pearce, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A
BOARD ORDER AND A CONSENT JUDGMENT OF ANY APPROPRIATE
UNITED STATES COURT OF APPEALS
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 extend your probation, discharge you, lay you off, or otherwise
discriminate against any of you for supporting the National Union of Hospital
and Health Care Employees District 1199C, AFSCME, AFL-CIO (the Union).
WE WILL NOT indicate to you that selecting the Union as your collective-
bargaining representative would be futile.
WE WILL NOT interrogate you about your protected concerted activities or
Union activities.
WE WILL NOT give you the impression that your protected concerted activities
and Union activities are under surveillance.
WE WILL NOT threaten you that employees may be discharged because they
engaged in protected concerted activities and activities on behalf of the Union.
WE WILL NOT tell employees that they have been discharged because they
engaged in protected concerted activities and activities on behalf of the Union,
or because other employees engaged in protected concerted activities or Union
activities.
WE WILL NOT fail to respond in a timely and complete manner to the Union’s
request that we bargain for a collective-bargaining agreement covering the
terms and conditions of employees in the following appropriate unit (the unit):
All full-time and regular part-time CNAs, RCNAs, Recreation Aides,
Activity Aides, Unit Clerks, Housekeeping employees and Dietary
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employees employed by the Employer at its One Penn Boulevard,
Philadelphia, PA facility; excluding all other employees, guards and
supervisors as defined in the National Labor Relations Act.
WE WILL NOT fail or refuse to furnish the Union with information it requests
that is relevant to the Union’s representational duties, and WE WILL NOT delay
in providing such requested information, and WE HAVE furnished the Union
with information it requested on September 3 and October 8, 2010.
WE WILL NOT change your dental and vision benefits, offer you disability,
accident, cancer or life insurance benefits, change your break rooms, or make
other changes in your terms and conditions of employment, without notification
to the Union and affording the Union an opportunity to bargain about any
proposed change.
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 National
Labor Relations Act. Some of these rights are described above.
WE WILL bargain with the Union as the exclusive collective-bargaining
representative of the employees in the unit set forth above, and if an
understanding is reached, WE WILL reduce it to writing and sign it. WE WILL
continue to bargain as if the initial year of certification in the unit will not expire
for 13 months, i.e. until September 30, 2011.
WE WILL, upon request of the Union, bargain with the Union concerning the
unilateral increase in the rates for your dental and vision benefits that we
announced in September 2010 and concerning the unilateral changes made by
removing your break room and replacing your break room with a unit manager’s
office.
Our former employees Keith Davis, James Jones, Kenise Jones-Kennedy,
Tamika Kennedy, Tracey McKoy and Barbara Moore have waived their rights
to immediate and full reinstatement to their former jobs. WE WILL pay our
former employees Keith Davis, James Jones, Kenise Jones-Kennedy,
Tamika Kennedy, Tracey McKoy and Barbara Moore for wages and benefits
they lost as a result of their discharges or layoffs, plus interest.
WE WILL remove from our files any reference to the discharges and/or lay-offs
of our former employees Keith Davis, James Jones, Kenise Jones-Kennedy,
Tamika Kennedy, Tracey McKoy and Barbara Moore and WE WILL notify
them that we have done so and that their discharges and/or layoffs will not be
used against them in any way.
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RC OPERATOR, LLC d/b/a
WILLOW TERRACE
_________________________
(Employer)
Dated_______________By____________________________________
(Representative) (Title)
The National Labor Relations Board (NLRB) is an independent Federal agency
created in 1935 to enforce the National Labor Relations Act. The NLRB
conducts secret-ballot elections to determine whether employees want union
representation and investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and
how to file a charge or election petition, you may speak confidentially to an
agent at the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
National Labor Relations Board
615 Chestnut Street, 7th Floor
Philadelphia, PA 19106-4404
(Telephone: 215-597-7601; facsimile: 215-597-7658)
(Hours of Operation: 8:30 a.m. to 5:00 p.m.)