TR & SNF, Inc. d/b/a The Nursing Center at University Village and TALF, Inc. d/b/a The Inn at Univer

National Labor Relations Board - Board Decisions

Nov 28, 2018

367 NLRB No. 37 (N.L.R.B. 2018)

367 NLRB No. 37
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 volume
TR & SNF, Inc. d/b/a The Nursing Center at Univer-
sity Village and TALF, Inc. d/b/a The Inn at
University Village, a single employer and
1199SEIU, United Healthcare Workers East,
Florida Region. Case 12–CA–216475
November 28, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case on the ground that the Respondent has failed to file
an answer to the complaint. Upon a charge filed by
1199SEIU, United Healthcare Worker East, Florida Re-
gion (the Union) on March 13, 2018, the General Coun-
sel issued a complaint against TR & SNF, Inc. d/b/a The
Nursing Center at University Village (Respondent Nurs-
ing) and TALF, Inc. d/b/a The Inn at University Village
(Respondent Inn), a single employer (collectively, the
Respondent) on June 28, 2018, alleging that the Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act by failing to engage in effects bar-
gaining. The Respondent did not file an answer.
On September 5, 2018, the General Counsel filed with
the Board a Motion for Default Judgment. Thereafter, on
September 7, 2018, the Board issued an order transfer-
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent did not file a 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 Default Judgment
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a 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 states
that unless an answer is received on or before July 12,
2018, the Board may find, pursuant to a motion for de-
fault judgment, that the allegations in the complaint are
true. Further, the undisputed allegations in the General
Counsel’s Motion for Default Judgment disclose that the
Region, by letter dated July 23, 2018, and sent via email
to the Respondent’s counsel, advised the Respondent that
the time limits for filing an answer to the complaint had
expired. The Region’s letter also notified the Respond-
ent that unless an answer was received by August 6,
2018, the Region would file a motion for default judg-
ment. On August 6, 2018, the Respondent requested a
10-day extension. The Regional Director granted the
request and extended the date for filing an answer to Au-
gust 17, 2018. The Respondent failed to file an answer.
In the absence of good cause being shown for the fail-
ure to file an answer, we deem the allegations in the
complaint to be admitted as true, and we grant the Gen-
eral Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Nursing has been a
Florida corporation with an office and place of business
at 12250 N. 22nd Street, Tampa, Florida, and has been
engaged in the operation of a skilled nursing facility
providing long-term healthcare and rehabilitative ser-
vices to residents.
During the past 12 months, in conducting its business
operations as described above, Respondent Nursing de-
rived gross revenues in excess of $100,000, and pur-
chased and received at its Tampa, Florida facility goods
valued in excess of $50,000 directly from points outside
the State of Florida.
At all material times, Respondent Inn has been a Flori-
da corporation with an office and place of business at
12250 N. 22nd Street, Tampa, Florida, and has been en-
gaged in the operation of an assisted living facility
providing assistance with daily living activities to resi-
dents.
During the past 12 months, in conducting its business
operations as described above, Respondent Inn derived
gross revenues in excess of $250,000, and purchased and
received at its Tampa, Florida facility goods valued in
excess of $50,000 directly from points outside the State
of Florida.
At all material times, Respondent Nursing and Re-
spondent Inn have been affiliated business enterprises
with common officers, ownership, directors, manage-
ment and supervision; have formulated and administered
a common labor policy; have shared common premises
and facilities; have provided services for and made sales
to each other; have interchanged personnel with each
other; have interrelated operations within the same con-
tinuing care retirement community; and have held them-
selves out to the public as a single-integrated business
enterprise.
We find that Respondent Nursing and Respondent Inn
constitute a single-integrated business enterprise and a
single employer within the meaning of the Act, and are
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
At all material times, the Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their 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:
Jeannette Baltzly - Skilled Nursing Facility Ad-
ministrator
John Bartle - Managing Director, AmeriCare
Group
At all material times, the following employees of the
Respondent constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All regular full time and regular part time non-
supervisory Associates employed at The Nursing Cen-
ter at University Village (recognizing that licensed
nurses are required by FL Statute to have certain super-
visory responsibilities and training) and The Inn at
University Village, excluding guards, supervisors as
defined by the Act, and confidential Associates and As-
sociates working less than fifteen (15) hours per pay
period, as defined in Section 20.
Since 2004, a more precise date being presently un-
known, the Respondent has recognized the Union as the
exclusive collective-bargaining representative of the unit.
This recognition has been embodied in successive collec-
tive-bargaining agreements, the most recent of which
was effective by its terms from January 1, 2016, to Octo-
ber 31, 2017, and which has been extended on a month-
to-month basis until either party elects to terminate the
extension.
Since 2004, a more precise date being presently un-
known, the Union has been the exclusive collective-
bargaining representative of the unit within the meaning
of Section 9(a) of the Act.
About February 9, 2018, the Respondent informed the
Union, in writing, that it anticipated ceasing its opera-
tions.
About February 16, 2018, the Union, in writing, re-
quested that the Respondent meet and bargain collective-
ly with the Union about the effects of the Respondent’s
decision to cease operations on the wages, hours, and
other terms and conditions of employment of the unit.
The subjects set forth in the preceding paragraph relate
to wages, hours, and other terms and conditions of em-
ployment of the unit and are mandatory subjects for the
purpose of collective bargaining.
Since about February 16, 2018, the Respondent has
failed and refused to meet and bargain collectively with
the Union about the effects of its decision to cease its
operations on the wages, hours, and other terms and con-
ditions of employment of the unit.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has failed and refused to bargain collectively
and in good faith with the exclusive collective-
bargaining representative of its employees in violation of
Section 8(a)(5) and (1) of the Act. The Respondent’s
unfair labor practices described above affect commerce
within the meaning of 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 violated Section 8(a)(5) and
(1) of the Act by failing and refusing to meet and bargain
collectively with the Union about the effects of the cessa-
tion of its operations, we shall order the Respondent to
bargain with the Union, on request, about the effects of
the Respondent’s decision to cease its operations on bar-
gaining unit employees. As a result of the Respondent’s
unlawful conduct, however, the unit employees have
been denied an opportunity to bargain through their col-
lective-bargaining representative at a time when the Re-
spondent might still have been in need of their services
and a measure of balanced bargaining power existed.
Meaningful bargaining cannot be assured until some
measure of economic strength is restored to the Union.
A bargaining order alone, therefore, cannot serve as an
adequate remedy for the unfair labor practices commit-
ted.
Accordingly, we deem it necessary, in order to ensure
that meaningful bargaining occurs and to effectuate the
policies of the Act, to accompany our bargaining order
with a limited backpay requirement designed both to
make whole the employees for losses suffered as a result
of the violation and to recreate in some practicable man-
ner a situation in which the parties’ bargaining position is
not entirely devoid of economic consequences for the
Respondent. We shall do so by ordering the Respondent
to pay backpay to the unit employees in a manner similar
to that required in Transmarine Navigation Corp., 170
NLRB 389 (1968), as clarified by Melody Toyota, 325
NLRB 846 (1998).1

1 See also Live Oak Skilled Care & Manor, 300 NLRB 1040 (1990).
Neither the complaint nor the motion has specified the impact, if any,
on the unit employees of the Respondent’s decision to cease operations.
Therefore, we do not know whether, or to what extent, the Respondent's
refusal to bargain about the effects of its decision has affected the unit
employees. In these circumstances, we shall permit the Respondent to
contest the appropriateness of a Transmarine backpay remedy at the
compliance stage. See, e.g., Kephart Trucking Co., 360 NLRB No. 22,
slip op. at 2 fn. 2 (2014); Fabricating Engineers, Inc., 341 NLRB 10,
11 fn. 1 (2004).
TR & SNF, INC. D/B/A THE NURSING CENTER AT UNIVERSITY VILLAGE 3
AND TALF, INC. D/B/A THE INN AT UNIVERSITY VILLAGE
Thus, the Respondent shall pay its unit employees
backpay at the rate of their normal wages when last in the
Respondent’s employ from 5 days after the date of this
Decision and Order until occurrence of the earliest of the
following conditions: (1) the date the Respondent bar-
gains to agreement with the Union about the effects of its
decision to cease operations; (2) a bona fide impasse in
bargaining; (3) the Union’s failure to request bargaining
within 5 business days after receipt of this Decision and
Order, or to commence negotiations within 5 business
days after receipt of the Respondent’s notice of its desire
to bargain with the Union; or (4) the Union’s subsequent
failure to bargain in good faith. In no event shall the sum
paid to these employees exceed the amount they would
have earned as wages from the date on which the Re-
spondent ceased operations to the time they secured
equivalent employment elsewhere, or the date on which
the Respondent shall have offered to bargain in good
faith, whichever occurs sooner. However, in no event
shall this sum be less than the employees would have
earned for a 2-week period at the rate of their normal
wages when last in the Respondent’s employ. Backpay
shall be based on earnings that the unit employees would
normally have received during the applicable period, less
any net interim earnings, and shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010). Additionally, we shall order the Respondent to
compensate unit employees for any adverse tax conse-
quences of receiving lump-sum backpay awards and to
file a report with the Regional Director for Region 12
allocating backpay to the appropriate calendar years for
each employee, in accordance with AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, TR & SNF, Inc. d/b/a The Nursing Center at
University Village and TALF, Inc. d/b/a The Inn at Uni-
versity Village, Tampa, Florida, a single employer, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with 1199SEIU, United Healthcare Workers
East, Florida Region (the Union) as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit about the effects of its deci-
sion to cease operations:
All regular full time and regular part time non-
supervisory Associates employed at The Nursing Cen-
ter at University Village (recognizing that licensed
nurses are required by FL Statute to have certain super-
visory responsibilities and training) and The Inn at
University Village, excluding guards, supervisors as
defined by the Act, and confidential Associates and As-
sociates working less than fifteen (15) hours per pay
period, as defined in Section 20.
(b) 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) On request, bargain with the Union about the ef-
fects of its decision to cease its operations on the unit
employees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Pay the unit employees their normal wages for the
period set forth in the remedy section of this decision,
with interest.
(c) Compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
12, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Tampa, Florida, copies of the attached no-
tice marked “Appendix.”2 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. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or ceased operations at the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

2 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 BOARD4
rent employees and former employees jointly employed
by the Respondents at any time since February 16, 2018.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. November 28, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, 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 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with 1199SEIU, United Healthcare
Workers East, Florida Region (the Union) as the exclu-
sive collective-bargaining representative of our unit em-
ployees in the following unit about the effects of our de-
cision to cease operations:
All regular full time and regular part time non-
supervisory Associates employed at The Nursing Cen-
ter at University Village (recognizing that licensed
nurses are required by FL Statute to have certain super-
visory responsibilities and training) and The Inn at
University Village, excluding guards, supervisors as
defined by the Act, and confidential Associates and As-
sociates working less than fifteen (15) hours per pay
period, as defined in Section 20.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union about the
effects of our decision to cease operations on the unit
employees, and reduce to writing and sign any agreement
reached as a result of such bargaining.
WE WILL pay the unit employees their normal wages
for the period set forth in the remedy section of the
Board’s Decision and Order, with interest.
WE WILL compensate our affected employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for
Region 12, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
TR & SNF, INC. D/B/A THE NURSING CENTER AT
UNIVERSITY VILLAGE AND TALF, INC. D/B/A
THE INN AT UNIVERSITY VILLAGE, A SINGLE
EMPLOYER
The Board’s decision can be found at
https://www.nlrb.gov/case/12-CA-216475 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.