Harrell v. Ridgewood Health Care Center Inc and Ridgewood Health Services Inc

Filing 30

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 12/22/2015. (KAM, )

FILED
2015 Dec-22 PM 04:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
CLAUDE T. HARRELL, JR., Regional
Director of the National Labor Relations
Board, for and on behalf of the National
Labor Relations Board,
Petitioner,
vs.
RIDGEWOOD HEALTH CARE
CENTER, INC.; RIDGEWOOD
HEALTH SERVICES, INC.,
Respondents.

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CASE NO. 6:14-CV-2075-SLB

MEMORANDUM OPINION
This case is before the court on Petition for Injunction under Section 10(j) of the
National Labor Relations Act [28 U.S.C. § 160(j)], (doc. 1),1 filed by petitioner, Claude T.
Harrell, Jr., the Regional Director of the National Labor Relations Board [NLRB], for and
on behalf of the NLRB. Upon consideration of the record, the submissions of the parties, the
arguments of counsel, and the relevant law, the court is of the opinion that the Petition for
Injunction under Section 10(j), (doc. 1), is due to be denied.
On September 19, 2013, the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union [the Union] filed a

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. Citations to page numbers refer to the page
numbers assigned to the document in the court’s electronic filing system.

complaint alleging unfair labor practices against Ridgewood Health Care Center, Inc.
[RHCC] and Ridgewood Health Services, Inc. [RHS and, collectively, the Ridgewoods],
alleging violations of sections 8(a)(1), (3), and (5).2 Specifically, the Union alleged that
Ridgewoods violated § 8(a)(5) in the following manner:
Failing and refusing to bargain over the decision to lay off all bargaining unit
employees; failing and refusing to bargain over the effects of the decision to
lay off all bargaining unit employees; announcing unilateral changes in terms
and conditions of employment including seniority, health insurance, and wage
rates; engaging in direct dealing and circumventing the Union by meeting with
employees to announce changes in terms and conditions of employment;
engaging in direct dealing and circumventing the Union [by] announcing to
employees that they are “at will” and that the terms of employment will be set
unilaterally by the Employer; failing and refusing to meet and confer with the
Union and unlawfully withdrawing recognition from the Union by the above
acts.
(Doc. 1-1.) The Union amended its charge to add claims of violations of §§ 8(a)(1) and (3).
(Doc. 1-2.) These claims were based on the Ridgewoods’ “interrogat[ing] job applicants. .
. about their union membership and union activities,” “threatening employees with a loss of
job security as a condition of continued employment,” and “refus[ing] to hire unit employees
of the predecessor because of their union and protected activities in an attempt to avoid a
bargaining obligation with the union.” (Id. at 2.)
Although the underlying complaint alleged unfair labor practices occurring on or
before October 22, 2013, (see doc. 1 ¶¶ 6, 7(p)-(t), 7(x)-(y)), and the Director found cause

2

The original complaint was not filed by the Director. The document purporting to be the
original complaint was signed on February 11, 2014. (See doc. 1 ¶ 3; doc. 1-1.)
2

in December 2013, (see doc. 4 at 7, 34), the Director did not file his Petition seeking a § 10(j)
injunction with this court until October 27, 2014, (doc. 1). In his Petition, the Director
alleges five acts or series of acts of the Ridgewoods that constitute unfair labor practices:
1. The Ridgewoods “unlawfully interrogated employees about their
union membership;”
2. The Ridgewoods “notified employees that they would no longer be
represented by the Union;”
3. The Ridgewoods “refused to hire or consider for hire [four]
employees of [the] predecessor [employer, Preferred,] in order to evade
successorship status and recognition of and bargaining with the Union;”
4. The Ridgewoods “refused to recognize and bargain collectively with
the Union as the exclusive collective-bargaining representative of an
appropriate unit of [their] employees, . . . including refusing to provide the
Union with requested information;” and
5. The Ridgewoods “unilaterally changed employees’ wages and other
terms and conditions of employment in effect at the time of the transfer of
operations from [Preferred] to [the Ridgewoods].”
(Doc. 1 ¶ 6.) Based on these unfair labor practices, the Director asks the court to order
immediate injunctive relief, including instatement of the four Preferred employees not hired
by the Ridgewoods and immediate recognition of the Union as the exclusive bargaining agent
for the employees of the bargaining unit, pending the outcome of the administrative
proceedings before the NLRB. (Id. at 15-17.)
STATEMENT OF FACTS
In the proceedings before the ALJ, the parties stipulated to the following facts:

3

1. Respondents are both Alabama corporations and have been since
their respective incorporations. Respondent RHCC was incorporated in 1977
and RHS was incorporated in 2013.
2. Since about 1977, Respondent RHCC, has owned property and a
facility in Jasper, Alabama (herein called “the facility”), located at 201 Oakhill
Road, that has been operated since that time as a nursing home.
3. Since about October 1, 2013, Respondent RHS has operated the
facility as a nursing home pursuant to a lease agreement with Respondent
RHCC.
4. Since October 1, 2013, Respondent RHS, in conducting its
operations set forth in paragraph 3, purchased and received goods and services
valued in excess of $5,000 directly from points outside the State of Alabama.
5. In 2008, Joette Kelley Brown purchased Respondent RHCC and
since that time has been an owner, an officer, and, in so doing, an agent of
RHCC within the meaning of Section (13) of the National Labor Relations
Act. Ms. Brown owned 100% of RHCC until October 2013, when Alicia
Stewart obtained 10% ownership.
6. Since at least June 1, 2013, Stephen Brown has served as an officer
of Respondent RHCC, and, in so doing, has been an agent of Respondent
RHCC within the meaning of Section (13) of the National Labor Relations
Act.
7. Since about October 1, 2013, Stephen Brown has served as an
officer of Respondent RHS, and, in so doing, has been an agent of Respondent
RHS within the meaning of Section (13) of the National Labor Relations Act.
8. In 2013 and 2014, RHCC’s only revenue [came] from lease
payments by Preferred prior to October 1, 2013, and by RHS subsequent to
October 1, 2013.
9. In July 2013, Joette Kelley Brown founded Respondent RHS and
since that time has served as an owner and President, and, in so doing, has
been a supervisor and agent of Respondent RHS within the meaning of Section
2(11) and (13) of the National Labor Relations Act. Ms. Brown owned 100%
of RHS until October 2013, when Alicia Stewart obtained 10% ownership.
4

10. Since about July 2013, Alicia Stewart has served as Vice-President
and Secretary of Respondent RHS and, in so doing, has been a supervisor and
agent of Respondent RHS within the meaning of Section 2(11) and (13) of the
National Labor Relations Act.
11. Ms. Brown and Ms. Stewart have been responsible for the
formulation and effectuation of labor relations policy for RHS from October
1, 2013 to the present.
12. Ridgeview Health Care Center is a nursing home facility in Jasper,
Alabama.
13. Since 2008, Joette Kelley Brown has owned Ridgeview Health
Care Center, Inc., which has leased the property on which Ridgeview Health
Care Center is operated.
14. Ridgeview Health Services, Inc. is a management firm that has
operated a nursing home at the Ridgeview Health Care Center facility, since
at least January 1, 2013.
15. Since at least August 1, 2013, Kara Holland has served as
Administrator of Ridgeview Health Services, Inc., at the Ridgeview Health
Care Center facility and, in so doing, has been an agent of Ridgeview Health
Services, Inc., within the meaning of Section 2(13) of the National Labor
Relations Act, during August and September 2013; and Vicky Burrell has
served as Director of Nursing for Ridgeview Health Services, Inc., at the
Ridgeview Health Care Center facility, and, in so doing, has been an agent of
Ridgeview Health Services, Inc., during August and September 2013.
16. In August and September 2013, Kara Holland and [Vicky] Burrell
conducted job interviews at the Ridgeview Health Care Center facility for
some of the Preferred employees who applied for employment with
Respondent RHS.
17. From about September 24, 2004 until September 30, 2013, the
Union had been the exclusive collective-bargaining representative of the
Preferred employees described in paragraph 16 of the Order Consolidating

5

Cases,3 Amended Consolidated Complaint and in successive collective
bargaining agreements [CBAs], the most recent of which was effective
beginning on September 24, 2010.
18. Respondent RHCC had no involvement in negotiating the
collective bargaining agreement between Preferred and the Union.
19. Preferred operated the nursing home under the d/b/a “Ridgewood
Health Care Center.” RHCC is a distinct legal entity that is separate from the
d/b/a name used by Preferred.
20. At no time has any owner of Respondent RHCC or Ridgeview
owned any portion of Preferred or had any management role over Preferred,
and, at no time, has Preferred’s ownership had any ownership of RHCC,
Ridgeview, or RHS, or had any role in their management.
21. Respondent RHCC has had no involvement in the day-to-day
operations of the Ridgewood facility during the time the facility was operated
by Preferred.
22. Preferred had sole responsibility for the entire operations of the
facility, including the employees, patients, supplies, and legal requirements.

3

This paragraph stated:
The following employees of Respondents (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 employees employed at
Respondents’ facility, including LPN’s, nurses aides, housekeeping
employees, dietary employees, laundry employees, maintenance
employees, and the food supervisor (it is understood that in the event
any of the preceding job titles change, they will remain in the
bargaining unit), but excluding all office clerical employees,
professional employees, guards and supervisors as defined in the Act.

(Doc. 14-2 at 15; see also doc. 14-3 at 59.)
6

23. Prior to October 1, 2013, neither Respondent RHCC nor its owners
or officers had any involvement in the employment of Preferred’s workforce
or the day-to-day operation of the facility.
24. From at least September 24, 2004 to the present, Respondent
RHCC has not had any employees.
25. The lease agreement between Preferred and Respondent RHCC
was terminated effective September 30, 2013.
26. On July 29, 2013, Preferred employees were notified by letter that
Preferred would no longer operate the facility after September 30, 2013, and
that their positions with Preferred would be eliminated after September 30,
2013.
27. Respondent RHS began operating the facility on October 1, 2013.
28. Prior to beginning its operation of the facility on October 1, 2013,
Respondent RHS had no involvement in the employment of individuals
working for Preferred and was never a party to the CBA between Preferred
and the Union.
29. Respondent RHS provided Preferred employees a three week
period, beginning August 13, 2013 and continuing until August 30, 2013, to
apply for positions considered bargaining unit positions with Preferred, during
which time period, only Preferred employees were allowed to apply. Preferred
employees were informed of this time period during which they could apply
before other candidates were considered.
30. Prior to August 13, 2013, Preferred posted a notice to its employees
near the facility’s time clock containing information about the application
process.
31. Prior to August 13, 2013, representatives of Respondent RHS met
with Preferred employees to explain the application process.
32. After August 30, 2013, RHS began advertising for vacant positions
and opened the application process to individuals who had not been employed
by Preferred.

7

33. Respondent RHS received one-hundred and eleven (111)
applications for positions considered bargaining unit positions with Preferred
from individuals who had not worked at Preferred.
34. Sixty-five (65) Preferred employees who were in bargaining unit
positions for Preferred applied for positions for Respondent RHS.
35. Respondent RHS hired 51 employees employed by Preferred and
hired 56 employees who were not employed by Preferred to begin working at
the facility on October 1, 2013, performing work which had been performed
by the positions in Preferred’s bargaining unit.
36. Crystal Bland, Erin Cooke, Shirley Courtney, Kimberly Lindsley,
Karrie O’Neal and Crystal Pool were offered and accepted employment with
Respondent RHS at the facility to begin on October 1, 2013, but never reported
for work.
37. On October 1, 2014, Respondent RHS employed 101 employees in
positions performing work which had been performed by the positions in
Preferred’s bargaining unit, 49 of whom were previously employed at the
facility by Preferred.
38. In the six weeks after October 1, 2013, RHS hired an additional
twenty-two (22) outside, non-Preferred applicants into positions performing
work which had been performed by Preferred’s bargaining unit
39. In its letters offering employment, Respondent RHS informed all
new hires that their employment with Respondent RHS would be “at will” and
that the terms and conditions of their employment would be set by Respondent
RHS and could change from time to time.
40. The following Preferred employees applied for work with
Respondent RHS prior to August 30, 2013, but were not hired:
Paul Borden
Midge Lechey
Lacey Cox
Teresa Diane McClain.
Betty Davis
Connie Sickles
Gina Eads (Harrison)
Hope Kimbrell
Vegas Wilson
Charlotte Kimborough

8

...
42. Connie Sickles was terminated from Ridgeview in 2012.
...
44. Former Preferred employee Betty Davis was terminated from
Ridgeview in 2003.
45. Former Preferred employee Gina Eads (Harrison) was terminated
from Ridgeview in 2012.
...
48. Respondent RHS has not recognized or bargained with the Union
at any time as the exclusive collective-bargaining representative of any of its
employees.
(Doc. 14-3 at 11-17.)
Following a hearing, the ALJ made the following “Conclusions of Law”4 –
3. At all material times, the Union has been, and continues to be, the
exclusive bargaining representative of LPN’s, nurses aides, housekeeping
employees, dietary employees, laundry employees, maintenance employees,

4

The underlying matter remains pending before the NLRB. Pursuant to section 10(c) –
In case the evidence is presented before a member of the Board, or before an
administrative law judge or judges thereof, such member, or such judge or
judges as the case may be, shall issue and cause to be served on the parties to
the proceeding a proposed report, together with a recommended order, which
shall be filed with the Board, and if no exceptions are filed within twenty days
after service thereof upon such parties, or within such further period as the
Board may authorize, such recommended order shall become the order of the
Board and become effective as therein prescribed.

29 U.S.C. § 160(c). Both sides filed exceptions to the ALJ’s decision. (Doc. doc. 24 at 2;
doc. 25 ¶ 3.)
9

and the food supervisor employed by the Respondents at the Ridgewood
facility in [Jasper], Alabama.
4. By (1) refusing to recognize and bargain with the Union on July 15,
2013 and continuously thereafter, (2) unilaterally changing terms and
conditions of employment of the predecessor’s employees commencing on
October 1; and (3) refusing to provide the Union with information requested
on September 13 and 25, and October 1, 2013 that was necessary and relevant
to the collective-bargaining agreement, the Respondents have engaged in
unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The Respondents violated Section 8(a)(1) by: (1) interrogating
bargaining unit employees by inquiring about their union membership during
job interviews during September 2013; (2) informing bargaining unit members
in August 2013 that they would not recognize the Union and would unilaterally
change their terms and conditions of employment; and (3) warning an
employee in December 2013 that she would be terminated if she supported the
Union.5
6. The Respondents violated Section 8(a)(3) and (1) of the Act in
September 2013 by engaging in the following discriminatory hiring scheme in
order to avoid its bargaining obligation with the Union: (1) creating a new job
classification in order to create a workforce composed of less than a majority
of the predecessor’s employees in order to avoid its bargaining obligation with

5

The Director has not raised this issue before the court.
10

the Union;6 and (2) refusing to hire the following unit employees: Betty Davis,
Gina Eads, Connie Sickles and Vegas Wilson.
(Doc. 21-1 at 20-21 [footnotes added].) Following the ALJ’s decision, the Director withdrew
any request for injunctive relief based on the failure to hire Borden, Cox, Kimbrell,
Kimborough, Lechey, McClain, and Waldrup. (Doc. 20 at 1-2.)
DISCUSSION
Section 10(j) of the National Labor Relations Act, codified as 28 U.S.C. § 160(j),
provides:
The Board shall have power, upon issuance of a complaint as provided in
subsection (b) of this section charging that any person has engaged in or is
engaging in an unfair labor practice, to petition any United States district court,
within any district wherein the unfair labor practice in question is alleged to
have occurred or wherein such person resides or transacts business, for
appropriate temporary relief or restraining order. Upon the filing of any such

6

The ALJ found that the Helping Hands position was not part of the bargaining unit at
Preferred. The court notes that the job duties performed by Helping Hands were performed
by bargaining unit employees at Preferred, albeit Preferred had no position precisely
equivalent to the Helping Hand position. The Director contends that the bargaining unit
includes:
All full-time and regular part-time employees employed at Respondents’
facility, including LPN’s, nurses aides, housekeeping employees, dietary
employees, laundry employees, maintenance employees, and the food
supervisor (it is understood that in the event any of the preceding job titles
change, they will remain in the bargaining unit), but excluding all office
clerical employees, professional employees, guards and supervisors as
defined in the Act.
(Doc. 1 ¶ 7(w)[emphasis added].) Helping Hands employees clearly fall within this
definition of the bargaining unit. Nevertheless, for purposes of deciding the Director’s § 10(j)
Petition, the court has assumed this position is outside the bargaining unit.
11

petition the court shall cause notice thereof to be served upon such person, and
thereupon shall have jurisdiction to grant to the Board such temporary relief
or restraining order as it deems just and proper.
28 U.S.C. § 160(j). The Eleventh Circuit has “fashioned a bipartite test for determining the
propriety of temporary relief: (1) whether the Board, through its Regional Director, has
reasonable cause to believe that unfair practices have occurred, and (2) whether injunctive
relief is equitably necessary, or, in the words of the statute, ‘just and proper.’” N.L.R.B. v.
Hartman and Tyner, Inc., 714 F.3d 1244, 1250 (11th Cir. 2013)(quoting Boire v. Pilot
Freight Carriers, Inc., 515 F.2d 1185, 1188-89 (5th Cir. 1975)).7 Because the court finds
that injunctive relief is not “just and proper,” the court will assume, rather than decide, that
reasonable cause exists to believe unfair labor practices have occurred. See Johnson ex rel.
N.L.R.B. v. Sunshine Piping, Inc., 238 F. Supp. 2d 1297, 1302 (N.D. Fla. 2002)(“even if
reasonable cause is shown, injunctive relief is not appropriate unless it can also be
demonstrated that such relief would be just and proper given the circumstances of the
case.”)(citations omitted).
“Section 10(j) is itself an extraordinary remedy to be used by the Board only when,
in its discretion, an employer or union has committed such egregious unfair labor practices
that any final order of the Board will be meaningless or so devoid of force that the remedial
purposes of the Act will be frustrated.” Pilot Freight Carriers, 515 F.2d at 1192 (emphasis

7

Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1, 1981,
constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981)(en banc).
12

added); see also Arlook for & on Behalf of N.L.R.B. v. S. Lichtenberg & Co., 952 F.2d 367,
372 (11th Cir. 1992)(quoting Pilot Freight, 515 F.2d at 1192). “[I]f a harm is of a routine
character in the NLRA context, the parties usually can redress such wrongs under the NLRB
administrative processes.” McKinney ex rel. N.L.R.B. v. Creative Vision Res., L.L.C., 783
F.3d 293, 299 (5th Cir. 2015). “[C]are must be taken [by the court] so that [§ 10(j) injunctive
relief] remains an extraordinary remedy, to be requested by the Board and granted by a
district court only under very limited circumstances.” Hartman and Tyner, 714 F.3d at 1249
(quoting S. Lichtenberg & Co., 952 F.2d at 374) (emphasis added).
In this case, the Director filed an Offer of Proof regarding the alleged unfair labor
practices, in which he contends:
[T]here is reasonable cause to believe that Respondents (a) unlawfully
interrogated employees about their union membership; (b) notified employees
that they would no longer be represented by the Union; (c) refused to hire or
consider for hire approximately 11 employees of its predecessor in order to
evade successorship status and recognition of and bargaining with the Union;
(d) refused to recognize and bargain collectively with the Union as the
exclusive collective-bargaining representative of an appropriate unit of
Respondents’ employees, including refusing to provide the Union with
requested information; and (e) unilaterally changed employees’ wages and
other terms and conditions of employment in effect at the time of the transfer
of operations from the predecessor employer to Respondents.

13

(Doc. 17 at 3.)8 For the reasons set forth below, the court finds these alleged unfair labor
practices are not “such egregious unfair labor practices that any final order of the Board will
be meaningless or so devoid of force that the remedial purposes of the Act will be
frustrated.” Pilot Freight Carriers, 515 F.2d at 1192.
A. EGREGIOUS CONDUCT
“[A] § 10(j) injunction is an ‘extraordinary remedy’ to be employed only in the event
of egregious unfair labor practices. To constitute ‘egregiousness’ for purposes of § 10(j),
a labor practice must lead to exceptional injury, as measured against other unfair labor
practices.” McKinney ex rel. N.L.R.B. v. Creative Vision Res., L.L.C., 783 F.3d 293, 299 (5th
Cir. 2015)(quoting Pilot Freight Carriers, 515 F.2d at 1192)(internal quotations and citation
omitted; emphasis added). The unfair labor practices in this case do not rise to the level of
egregious conduct.
1. “Unlawfully Interrogated Employees about Their Union Membership”
In his Offer of Proof, the Director contends:

8

At a telephone conference on January 6, 2015, the court informed counsel for the
Director that it would not review the record of the proceedings before the ALJ and that the
Director would be expected to specifically submit and reference the evidence upon which he
relied. Despite these instructions to counsel, several weeks later, counsel filed a Motion to
Try Petition on the Basis of the Record in the Underlying Proceedings, (doc. 11), which was
summarily denied. Two days later, on the eve of the hearing, the Director’s counsel filed a
Motion to Reconsider and submitted the administrative record, which consists of over 1200
pages, untethered to any meaningful citations. (Doc. 14.) At the hearing, counsel for the
Director made an Offer of Proof, citing to the administrative record. (Doc. 17.) The court
has considered only those pages of the administrative record cited by the Director in his Offer
of Proof.
14

During interviews for positions at Respondents’ facility, on various
dates from August 8, 2013, through August 30, 2013, Respondents
interrogated several of the Preferred employees about their union membership
(TR McPherson at 102-103; TR Borden at 222)9 and about deductions from
their checks (TR Wilbert at 131, TR Davis at 250-51) which coerced some
employees to reveal that they paid Union dues (TR Wilbert at 131; TR
Davidson Ramos at 150).
(Doc. 17 ¶ 17 [footnote added].) Pam McPherson testified that she was asked during her
interview if she was in the Union, to which she answered, “no.” (Doc. 14-1 at 103.)
McPherson worked as a clerical employee and she was not part of the bargaining unit. (Id.
at 102.) Paul Borden, who worked in Maintenance, testified that he was asked whether he
was in the Union, to which he answered “no.” (Id. at 219, 225.) He testified that he “was
in the union bargaining at the time.” (Id. at 225.) The Director has not cited any other
evidence of direct questioning of applicants about Union membership.
The Director has alleged that other applicants were “coerced” into revealing they paid
Union dues. (Doc. 17 ¶ 17.) However, Crystal Wilbert, a dietary aide, testified that she had
“voluntarily told [the interviewer that she] was a union member” when she was asked about
her deductions from her paycheck. (Doc. 14-1 at 130-31, 133 [emphasis added].) She did
not mention any coercion or threat or that she felt coerced into revealing her Union
membership. (See id.) Betty Davis, a CNA, testified that she was asked “what kind of
deduction was taken from [her] check” and that she told the interviewer. (Id. at 250-51, 254.)

9

The Director uses “TR” to refer to the transcript of the ALJ’s hearing, which is document
14-1 in the court’s record.
15

She did not testify that she had mentioned Union dues or that she was coerced or felt coerced
into mentioning her membership in the Union. (Id. at 253-54.) Becky Ramos, who works
in Housekeeping, testified that she was asked “what was taken out of [her] check,” and she
replied that she had union dues, vision and dental insurance, long-term disability insurance,
and 401(k) contributions deducted from her paycheck. (Id. at 146-47, 152.) She, like Davis
and Wilbert, did not testify that she was coerced or felt coerced into revealing her Union
membership. (Id. at 152.)
The evidence cited by the Director shows that five applicants were questioned,
directly or indirectly, about their Union membership,10 but no employee was coerced or felt
coerced into talking about their Union membership or Union support. Although the Director
asserts that the Ridgewoods coerced job applicants to reveal Union membership, “coercion”
implies a use of force or a threat to compel the person to act. Absolutely nothing in the
record cited by the Director indicates that the interviewers did anything more than ask and
no applicant testified that he or she felt compelled or threatened to reveal Union membership
or support. Assuming that asking about Union membership and paycheck deductions for
Union dues constituted an unfair labor practice, it is certainly not egregious and/or
extraordinary when compared to other interrogation cases. See Mead Corp. v. N.L.R.B., 697
F.2d 1013, 1025-26 (11th Cir. 1983); Weather Tamer, Inc. v. N.L.R.B., 676 F.2d 483, 490

10

Of these five applicants, the Director alleges that only Betty Davis was not hired by the
Ridgewoods in order to avoid successor status. (See doc. 17 ¶ 19; doc. 20 at 1-2.)
16

(11th Cir. 1982). No evidence cited in the Director’s Offer of Proof proves that interrogation
occurred outside the application process in August 2013, more than a year before the instant
action was filed.
The evidence offered by the Director does not support any inference of coercion or
otherwise threatening questioning about Union membership and support. Therefore, the
court finds this unfair labor practice is not “extraordinary” when compared to other NLRB
cases alleging similar unfair labor practices.
2. “Notified Employees That They Would No Longer Be Represented by the
Union”
According to the Director’s Offer of Proof,
21. Since about September 2013, Respondents, by letter, made clear
to Preferred employees that it had no intention of recognizing the Union when
it made written offers of employment to some of the interviewed Preferred
employees, notifying these employees that they would be at will employees,
they could be terminated at any time without cause and that they would be
subject to terms and conditions of employment set by Respondents. (JA Ex. 2,
¶ 39; JA Ex. 12.)11
...
26. About October 22, 2013, Respondents, by letter, announced to
employees that they were no longer represented by the Union and that
Respondents would deal directly with employees regarding terms and
conditions of employment. (JA Ex. 17.)
(Doc. 17 ¶¶ 21, 26 [footnote added].)

11

“JA” refers to the joint exhibits submitted at the hearing before the ALJ, which is
document 14-3 in the court’s record. “JA Ex. 2” is the parties’ Joint Stipulation of Facts.
(See doc. 14-3 at 10-18.)
17

The first letter referred to by the Director was the job offer sent by Brown to all
employees of RHS. (Doc. 14-3 at 60.) In pertinent part, the letter states:
Your employment with Ridgewood Health Services, Inc., will be at-will and
either party can terminate the relationship at any time with or without cause
and with or without notice. Your employment also will be subject to the terms
and conditions of employment which will be set by Ridgewood Health
Services, Inc. and which may change from time to time.
(Id.; see also doc. 14-3 at 16 [“In its letters offering employment, Respondent RHS informed
all new hires that their employment with Respondent RHS would be ‘at will’ and that the
terms and conditions of their employment would be set by Respondent RHS and could
change from time to time.”].) This statement of fact, as understood by RHS at the time, does
not express any hostility toward the Union or Union membership. Indeed, the letter does not
mention the Union. At the time the letter was sent, RHS had already made its decisions
regarding which Preferred employees it would hire and it had an idea of the total number of
employees it needed to fully staff the facility. It had calculated that former Preferred
employees would account for less than half of its work force. See Fall River Dyeing &
Finishing Corp. v. N.L.R.B., 482 U.S. 27, 41 (1987)(“Where . . . the union has a rebuttable
presumption of majority status, this status continues despite the change in employers. And
the new employer has an obligation to bargain with that union so long as the new employer
is in fact a successor of the old employer and the majority of its employees were employed
by its predecessor.”)(emphasis added). Therefore, at the time they began operating the

18

facility, the Ridgewoods were contending they were not the successor to Preferred. RHS’s
letter to the new employees does no more than set forth this contention.
The second letter, sent on October 22, 2013, is also from Brown. This letter sets forth
her beliefs regarding Unions; it states, in pertinent part, “the Ridgewood facility is now
operating without a union,” and, “I have a vision of creating an environment at Ridgewood
that is a great place to be for our residents and our employees, and I think we can best
accomplish this vision if we work directly together to make this happen. I think that without
a union we can be our most productive, efficient and flexible so that this facility will
prosper.”12 (Doc. 14-3 at 67.)
The court finds these letters are not “extraordinary” unfair labor practices. They are
not threatening and do no more than state the current state of affairs as perceived by Brown.13
Moreover, these letters were sent after the Ridgewoods had interviewed and hired applicants
from Preferred and at a time when the Ridgewoods had determined that former Preferred
employees would not compromise a majority of their workforce. See N.L.R.B. v. Burns Int’l
Sec. Servs., Inc., 406 U.S. 272, 295 (1972)(“[I]t may not be clear until the successor
employer has hired his full complement of employees that he has a duty to bargain with a

12

This letter also discusses union organization efforts and the signing of union cards, but
the Director’s Offer of Proof states only that the letter “announced” the Union no longer
represented the employees and that employees would negotiate directly with management.
(Doc. 17 ¶ 26.) The court assumes the Director has no objection to the statements by Brown
regarding Union cards and organization efforts.
13

See, supra, note 11.
19

union, since it will not be evident until then that the bargaining representative represents a
majority of the employees in the unit . . . .”).
These two letters, sent after the Ridgewoods had determined – presumably wrongfully
– that they were not the successor to Preferred, do not constitute an egregious or
extraordinary unfair labor practice.
3. “Refused to Hire or Consider for Hire [Four] Employees of its Predecessor
in Order to Evade Successorship Status and Recognition of and Bargaining with
the Union”
Based on the ALJ’s Decision, the Director has reduced the number of employees he
claims were wrongfully denied employment with the Ridgewoods, from the original eleven
to four. (Doc. 20 at 1-2.) With regard to three of these employees – Betty Davis, Gina Eads,
and Connie Sickles – the Director offered the following:
Respondent claims [these employees] were not hired because they had
been previously fired from Brown’s other nursing home, Ridgeview. But
Respondents told Preferred employees that former Ridgeview employees who
had been fired by Ridgeview would be eligible to work for Respondent at the
Ridgewood facility. (TR Kimbrell at 58-59.) Ms. Davis’[s] discharge from
Ridgeview was in 2003, 10 years prior to applying with Respondent. (TR
Davis at 252.)
(Doc. 17 ¶ 19(c).) The Director has offered nothing regarding Vegas Wilson. (See generally
docs. 1, 2, and 17.) However, the Ridgewoods argued that Wilson was not hired because
“[t]he Director of Nursing . . . informed RHS that Ms. Wilson was terminated from [another]
facility for engaging in a physical and verbal altercation with another employee,” and “that

20

Ms. Wilson displayed a threatening demeanor toward staff and management employees at
the other facility.” (Doc. 6 at 19 [citing, inter alia, doc. 6-1 at 8].)
Assuming the Ridgewoods failed to hire these four former Preferred employees in an
effort to evade successorship status, the court finds the Ridgewoods’ conduct was neither
egregious nor extraordinary when compared to similar cases. The Director cites the case of
Bloedorn v. Francisco Foods, Inc., 276 F.3d 270 (7th Cir. 2001); however, that case is
readily distinguishable from the instant action. In Bloedorn, for example, the new employer
specifically told the predecessor’s employees/applicants that she was making her hiring
decisions in order to keep the union out. Id. at 276-83. The court found the Director had
presented evidence that the new employer:
made no secret of its intent, declaring from the beginning of the transition that
it would not recognize the Union when it assumed ownership of the store.
Over the course of the hiring process, [the new employer’s] stated goal of
keeping [predecessor’s] employees in the minority, her remark to [one
employee] that “she’d hire us all back if we would vote out the union,” her
remark to [another employee] that he would have been fired if she had to take
the Union back, and her inquiry as to whether [a] long-time cashier . . . could
work “for a nonunion store,” conveyed an unmistakable message that union
representation jeopardized the hiring prospects of [the predecessor’s]
employees.
Id. at 298 (internal citations omitted). The Director also presented evidence that the new
employer delayed making decisions on hiring the predecessor’s employees until after the
store reopened and even told one employee that she was only hiring 50% of the predecessor’s
employees to keep the union out. Id. at 278-79.

21

This case lacks any such evidence of overt calculation and threats. Compare TCB
Sys., Inc. v. N.L.R.B., 448 Fed. Appx. 993, 996 (11th Cir. 2011). Indeed, the Director has
withdrawn seven of its eleven claims of discriminatory failure to hire Preferred employees
and has offered no evidence of discrimination with regard to another. Certainly he has not
directed the court to evidence of conduct similar to the type of egregious conduct at issue in
Bloedorn.
4. Refused to Recognize and Bargain Collectively with the Union as the
Exclusive Collective-Bargaining Representative of an Appropriate Unit of
Respondents’ Employees, Including Refusing to Provide the Union with
Requested Information
The Director contends:
29. Since October 1, 2013, Respondents have continued to tell
employees that there is no [U]nion at the facility. (JA Ex. 17.)
30.
On October 1, 2013, the Union requested in writing that
Respondent recognize and bargain with it because it had hired a substantial
and representative complement of its workforce, a majority being former
Preferred employees. (JA Ex. 15.)
31. On October 7, 2013, Respondents refused the Union’s request. (JA
Ex. 16.)
(Doc. 17 at 9-10.) The only evidence cited by the Director as support for his assertion that
“Respondents have continued to tell employees that there is no union at the facility,” is the
October 22, 2013, letter set forth above. (See doc. 14-3 at 67-68.) This single letter does not
support an inference of continuing conduct. Moreover, the only evidence cited for the

22

Ridgewoods’ refusal to provide documents to the Union is a single letter from the
Ridgewoods’ counsel, in which counsel stated:
As stated in your letter dated October 1, 2013, [RHS] began operating
the Ridgewood facility on October 1, 2013; however, due to the fact that the
Company took over the facility sooner than it originally anticipated and the
fact that a lower than expected number of Preferred employees applied to
work with Ridgewood, the Company still is actively filling positions and
anticipates hiring many more employees in the near future. The facility is
not yet operating normally, is having to make use of temporary help, and
employees are being scheduled on a shift to shift basis.
Moreover, even if it was assumed that the Company had hired a
substantial and representative complement of its workforce by the first day of
operations as you assert, the majority of employees hired in job positions that
were in the bargaining unit represented by the USW were not previously
employed by Preferred. Therefore, even if a substantial and representative
complement had been hired, [RHS] would not be a successor and will not and
indeed cannot recognize the USW as the representative of those employees.
Likewise, it has no obligation to respond to your requests for documents.
(Doc. 14-3 at 66.)
Although the failure to deal with the Union may be an unfair labor practice, the
Ridgewoods’ statements cited by the Director do not constitute an egregious or extraordinary
unfair labor practice. The Director has provided no evidence that the Ridgewoods have done
anything more than insist that it is not the successor to Preferred, which is a fact present in
every successor case. As such, the court finds no egregious or extraordinary unfair labor
practice has been shown as to the Ridgewoods’ refusal to negotiate with the Union.

23

5. Unilaterally Changed Employees’ Wages and Other Terms and Conditions
of Employment in Effect at the Time of the Transfer of Operations from the
Predecessor Employer to [The Ridgewoods]
In his Offer of Proof, the Director contends:
28. Starting on October 1, 2013 and continuing, Respondents have
implemented unilateral changes to employees[’] terms and conditions of
employment including a new handbook, health insurance with reduced
benefits, elimination of seniority, elimination of a grievance procedure, a
different shift differential rate of pay, reduced vacations, and reduced holidays,
and elimination of 401K retirement benefits. (TR Dudley at 267-92; TR
Thomas at 164-166; TR Tidwell at 191-192; JA Ex. 2 ¶ 48; JA Ex. 20; GC Ex.
1(o).)14
(Doc. 17 ¶ 28 [footnote added].)
The Supreme Court has “acknowledged the interest of the successor in its freedom to
structure its business and the interest of the employees in continued representation by the
union. . . . And the new employer has an obligation to bargain with that union so long as the
new employer is in fact a successor of the old employer and the majority of its employees
were employed by its predecessor.” Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482
U.S. 27, 41 (1987). Therefore, only if the new employer is a successor does that employer
have the obligation to negotiate with the incumbent Union before structuring its new
business. However, even though the successor employer has to negotiate, it usually does not
have to accept the predecessor’s terms and conditions or its collective bargaining agreement
with the Union. See New England Mech., Inc. v. Laborers Local Union 294, 909 F.2d 1339,

14

“GC” refers to general counsel’s exhibits submitted at the hearing before the ALJ; these
exhibits are found in document 14-2 of the court’s record.
24

1342 (9th Cir. 1990)(“In general, if an employer takes over another business, the employer
is not bound by its predecessor’s collective bargaining agreements. At most, the employer
will be required to bargain with any unions that the predecessor employer had recognized.
Even then, the new employer will only have a duty to bargain with a union if the new
employer is a ‘successor’ employer.” (citing Fall River, 482 U.S. at 40; Sheet Metal Workers
Int’l Ass’n, Local No. 359 v. Arizona Mech. & Stainless, Inc., 863 F.2d 647, 651 (9th Cir.
1988)))(internal citations omitted).
Therefore, this unfair labor practice requires proof that the Ridgewoods are the
successor to Preferred. However, to prove entitlement to a § 10(j) immediate injunction, as
set forth above, the Director must show that this failure to negotiate before setting the initial
terms and conditions was “egregious” or extraordinary when compared to similar unfair labor
practices. None of the evidence cited in the Director’s Offer of Proof proves anything other
than that the terms and conditions were changed.
For example, the Director cites the court to paragraph 48 of the parties’ Joint
Stipulation of Facts, which states in its entirety, “Respondent RHS has not recognized or
bargained with the Union at any time as the exclusive collective-bargaining representative
of any of its employees.” (Doc. 14-3 at 17, ¶ 2.) Moreover, he cites the court to the RHS
Handbook and the Ridgewoods’ Answer to the Complaint and Notice of Hearing, without
any citation to specific pages. (Doc. 17 ¶ 28 [citing “JA Ex. 20,” found at doc. 14-3 at 99108, and “GC Ex. 1(o)], found at doc. 14-3 at 32-39].) The court declines to search these

25

documents for evidence supporting the Director’s claims. However, the evidence is not
disputed that the Ridgewoods set the initial terms and conditions of employment and these
terms and conditions were different from those of Preferred, the predecessor.
Also, the Director cites the testimony of three employees – Cynthia Dudley, a CNA,
Debra Thomas, a CNA, and Joann Tidwell, a laundry worker. However, none of these
employees testified to egregious, extraordinary, or continuing actions by the Ridgewoods:
!

Thomas testified that she went from 30 days vacation to 5 days. (Doc.
14-1 at 166.) She also testified that the Ridgewoods eliminated two
holidays – the employee’s birthday and anniversary date. (Id. at 167.)

!

For Paid Time Off [PTO], Dudley testified that she had received 30
days per year and with the Ridgewoods she receives “Ten sick days and
seven vacation days [from] the way [she] understand[s] . . . the
handbook.” (Id. at 272.)

!

Tidwell testified that the shift differential changed. (Id. at 194.) She
did not testify how the shift-differential had changed. (See id.)

!

Dudley testified, “They took down the seniority list, so I’m assuming we don’t
have seniority now.” (Id. at 270.)

!

Tidwell testified, “[T]hey changed our Blue Cross over to a different
rider [and] [t]hey changed our dental and the vision over to another
company.” (Id. at 193.) She also testified that she had higher co-pays.
(Id.)

!

Thomas testified, “Well, I didn’t used to have to pay for x-rays and
stuff when I’d go to the doctor and lab work. Now I have to pay.” (Id.
at 167.) She also testified, “We had Aflac insurance and other types of
insurance that they no longer do there,” and “[w]e don’t have
retirement.” (Id. at 167.)

!

With regards to health insurance, Dudley testified, “It’s still Blue Cross,
but . . . if you go in the hospital, you pay $250 for the first 6 days, and
26

some on some of the tests, . . . it upped in price. And with our old
insurance, we paid $300 to use the hospital.” (Id. at 273.)
!

Tidwell and Dudley testified that the Ridgewoods eliminated or
changed the 401(k). (Id. at 193, 270.)

!

As Local President, Dudley was notified of all discipline before the
Ridgewoods took over, but she had not been notified of any discipline
since the transition. (Id. at 280.)

The court notes that the Director has not cited the court to evidence that the changes
in the terms and conditions were designed and intended to intimidate or threaten Union
members and supporters or that the “unilateral changes” were not the initial terms and
conditions set by the Ridgewoods. See Burns Int’l Sec. Servs., Inc., 406 U.S. at 294-95
(Although a successor employer is ordinarily free to set initial terms on which it will hire the
employees of a predecessor, there will be instances in which it is perfectly clear that the new
employer plans to retain all of the employees in the unit and in which it will be appropriate
to have him initially consult with the employees’ bargaining representative before he fixes
terms.”). The initial changes about which the Director complains affected all employees
regardless of whether the employee was previously employed by Preferred. Moreover, the
Director has not cited evidence that, before October 1, 2013, the Ridgewoods’ status as a
successor was “perfectly clear.” See Burns, 406 U.S. at 294-95. Unilaterally setting the
initial terms and conditions in a successor situation is an ordinary and routine – not egregious
or extraordinary – unfair labor practice present in virtually every successor case in which the
new employer does not recognize the Union. Nothing about the situation at the facility in

27

this case demonstrates that the Ridgewoods’ conduct rises above the employer conduct of the
routine, ordinary successor case.
Although every unfair labor practice causes some harm, the harms in this case, as
shown by the evidence cited by the Director, are routine and were largely complete long
before the Director filed his Petition for immediate injunctive relief. The court finds that the
wrongful conduct in this case is not egregious or extraordinary such that an immediate
injunction would be just and proper.
B. FINAL ORDER OF THE NLRB
“[Section] 10(j) relief is only appropriate when any final order of the NLRB would
be meaningless and the remedial purposes of the Act will be frustrated without an injunction
to preserve the status quo. Thus, injunctive relief should issue when harms are ongoing, yet
incomplete and likely further to harm the union or its supporters in the workforce.” Creative
Vision Res., 783 F.3d at 299 (internal citations omitted). In this case, the court finds the
Director has not proven that the Board’s Order will be meaningless or the remedial purposes
of the NLRA would be frustrated without an immediate injunction.
1. Instatement
In his Petition, the Director asks the court to order the Ridgewoods –
[To] [o]ffer interim employment in writing to all affected employees
[Betty Davis, Gina Eads, Connie Sickles, and Vegas Wilson] who were not
considered for or offered employment on or about October 1, 2013, without
prejudice to their seniority or other rights and privileges previously enjoyed,
displacing, if necessary, any employees hired, transferred or reassigned to
replace them[.]
28

(Doc. 1 at 16.) The Director contends that this immediate injunctive relief is just and proper
because, “Without interim employment at the facility, many of the [four] individuals will
likely move on to other jobs and be unable to accept offers of employment under a Board
order. . . . Interim employment is necessary to restore the leadership necessary for effective
bargaining. Also, the long separation from the unit may diminish their support for the Union
if they do ultimately return to work.” (Doc. 2 at 30 [footnotes omitted].)
The court notes that the Director has cited the court to no evidence that these four
individuals are necessary for Union leadership or that support for the Union will be
diminished during the interim such that the Union will not be able to resume its
representation of the Ridgewood employees if the NLRB orders recognition of the Union.
Moreover, the court rejects any argument by the Director that immediate instatement is
necessary because these “individuals will likely move on to other jobs and be unable to
accept offers of employment under a Board order.” See id. The Director did not file his
Petition asking for immediate instatement of these employees until over a year after the
Ridgewoods began operation of the facility. The court finds that any individual that could
“move on” did not wait a year to do so. The court finds the Director’s delay of over a year
in seeking instatement for these employees makes such relief unjust and improper. See
Hartman & Tyner, 714 F.3d at 1252 (“delay makes it difficult to justify granting temporary
injunctive relief when that relief may not be any more effective than a final Board order

29

several months after the alleged unfair labor practices have occurred”)(internal quotations
and citations omitted).
The court finds having waited over a year following the Ridgewoods’ hiring decisions
to seek instatement of those individuals it claims were wrongfully denied employment, the
Director has demonstrated that instatement of these individuals may await the final decision
of the NLRB. Therefore, the Director’s request for an immediate injunction instating the
four previous employees of Preferred to positions with the Ridgewoods will be denied.
2. Recognize and Bargain with Union
The Director asks the court to order the Ridgewoods:
(2) [To] [r]ecognize and bargain with the Union as the exclusive
bargaining representative of Unit employees during the interim period,
including providing the Union with requested information; [and]
(3) Upon the Union’s request, [to] rescind any and all unilateral changes
in wages, hours and working conditions that Respondents implemented for
Unit employees at or since the time it took over the operation of the Jasper,
Alabama, facility on or about October 1, 2013, and to restore all wages, hours
and terms and conditions of employment to the state they existed on September
30, 2013[.]
(Doc. 1 at 16.) He contends that this relief is “just and proper” because:
Without an interim bargaining order, in the non-union environment
created by Respondents, employees’ support for the Union will erode as the
Union is unable to protect them or affect their working conditions while the
case is before the Board. Successorship is an unsettling transition period
during which the Union is in a peculiarly vulnerable position. Respondents’
refusal to bargain with the Union disrupts the employees’ morale, deters their
organizational activities, and discourages their membership in unions.
Employees’ interest in the Union will wane quickly as working conditions
remain apparently unaffected by the union or collective bargaining. . . . Not
30

surprisingly, employee support has already begun to dissipate, causing the
Union to hold fewer meetings with the employees.15
The Union’s lost support will not be restored by a final Board order
because by then it will be too late. The longer the Union is kept from working
on behalf of Respondents’ employees, the less likely it will be able to organize
and represent those employees effectively if and when the Board orders the
company to commence bargaining. Employees will shun the Union or have
little reason to support it because of its inability to improve their working
conditions for years.16
Union loss of support, in turn, will make the Board’s final bargaining
order meaningless. The Union needs the support of Respondents’ employees
in order to bargain effectively. Without it, the Union will have no leverage
and will be hard-pressed to secure improvements in wages and benefits at the
bargaining table. No effective collective bargaining will occur under the
Board’s final order. There is a very real danger that employee support will
15

In his Offer of Proof, the Director states, “Since October 1, 2013, the Union has held
only one union meeting, compared to quarterly meetings previously.” (Doc. 17 ¶ 29 [citing
“TR Dudley at 283,” found at doc. 14-1 at 286].) The evidence cited by the Director does not
support a finding that the lack of Union meetings was caused by waning employee support
for the Union. Dudley testified the lack of Union meetings was the result of her inability to
post on bulletin boards at the facility:
Q. And since Ms. Brown’s company, how often had you had union
meetings?
A. Had one.
Q. One? Why is that?
A. Because we can’t post it on the bulletin board. And people’s
working doubles, and it’s hard to get them on the phone.
(Doc. 14-1 at 286.)
16

There has been no evidence presented of anti-union sentiment arising from the fact that
the Union has been excluded from negotiations with the Ridgewoods. Indeed, Brown has
apparently made clear that the lack of a Union presence is not the fault of the Union.
31

erode to such an extent that the Union could no longer represent those
employees. Respondents will continue to reap the benefits of its unlawful
conduct even after the order to bargain either because the Union is gone or
because it is too weak to bargain effectively. Thus, Respondents will defeat
the Union, elude its bargaining obligation, and frustrate the intent of Congress
by virtue of its unlawful actions.
(Doc. 2 at 24-26 [footnotes and internal quotations omitted].) When asked at the hearing
what evidence supported a finding that the injunction would be “just and proper,” counsel
for the Director referred the court to the following paragraphs in the Offer of Proof:
28. Starting on October 1, 2013 and continuing, Respondents have
implemented unilateral changes to employees terms and conditions of
employment including a new handbook, health insurance with reduced
benefits, elimination of seniority, elimination of a grievance procedure, a
different shift differential rate of pay, reduced vacations, and reduced holidays,
and elimination of 401K retirement benefits. (TR Dudley at 267-92; TR
Thomas at 164-166; TR Tidwell at 191-192; JA Ex. 2 ¶ 48; JA Ex. 20; GC Ex.
1(o).)
29. Since October 1, 2013, Respondents have continued to tell
employees that there is no union at the facility. (JA Ex. 17.)
...
33. Since October 1, 2013, the Union has held only one union meeting,
compared to quarterly meetings previously. (TR Dudley at 283.)
34. Since October 1,2013, the Union has experienced limited success
in obtaining signed union cards from employees. (Aff. Dudley at 4;17 Aff.
Tidwell at 3.)

17

The court notes that the Director filed three affidavits from Dudley; this reference is
apparently to the second affidavit. (See doc. 16-3 at 26.)
32

(Doc. 17 at 10-11 [footnote added].) The court finds that this evidence is insufficient to
establish that immediate injunctive relief is just and proper; this evidence does not show
Union support is threatened by the actions of the Ridgewoods and/or that the Union cannot
be an effective representative should the NLRB order the Ridgewoods to recognize the
Union as the successor to Preferred.
Cynthia Dudley has worked at RHS facility since 1974; since 1976, a union has
represented the employees. (Doc. 14-1 at 266, 268.)

Dudley has been president of the

Union’s Local since 1980. (Id. at 268.) She testified that the Ridgewoods made changes
when they took over operation of the home and that these changes were made unilaterally.
She testified that since the Ridgewoods took over the Union has gone from having four
meetings a year to just one meeting since October 1, 2013; she did not testify that the lack
of meetings was due to a lack of support for the Union. When asked why the Union had only
one meetings, she testified, “Because we can’t post it on the bulletin board. And people’s
working doubles, and it’s hard to get them on the phone.” (Id. at 286.) This testimony does
not support a finding that support for the Union is waning.
The Director also cites Dudley’s testimony regarding Union cards; she testified, “I
have been distributing union cards since on or about the second week after the change-over.
Distribution of cards is difficult since the company does not allow distribution on company
time. I have about ten cards signed. Some employees are scared because the employment
letter they signed said they were at-will and could be fired at any time.” (Doc. 16-3 at 26.)

33

The Director also cited the affidavit of Joann Tidwell, in which Tidwell testified, “Sometime
after October 1, 2013, I received a letter from Ridgewood Heath Services that explained the
reasons why the company did not like unions or support them. Because all employees got
this letter, a lot of employees do not want to sign union cards. I have assisted in distributing
union cards since the change-over.” (Id. at 71.) The court finds that the Director has not
cited the court to evidence that Union support has been chilled by the Ridgewoods.
Nevertheless, the court finds that, even assuming union membership drives have been
unsuccessful since the Ridgewoods have assumed operations, the Director has not shown that
an order from the NLRB that the Ridgewoods are the successors to Preferred and must
recognize and bargain with the Union will not be effective.
The Eleventh Circuit has held, “A bargaining order is appropriate only where the
unfair practices have so intimidated employees that an election, even with the full
complement of traditional NLRB remedies, would not reflect their true sentiments.” NLRB
v. Goya Foods of Florida, 525 F.3d 1117, 1128 (11th Cir. 2008)(quoting Avecor, Inc. v.
NLRB, 931 F.2d 924, 935 (D.C. Cir. 1991)). The Director has not cited the court to evidence
that the Ridgewoods have intimidated, threatened, and/or harassed their employees regarding
the Union, Union support, and/or Union membership. Indeed, this case is distinctive for its
lack of any evidence of such vitriol.
The Union had represented the employees in the Jasper nursing home for decades
prior to the change in ownership and its Local President remains employed at the facility.

34

The Director has cited the court to no evidence that, despite this lengthy tenure and the
employment of the Union’s Local President, the Union has become unorganized in the
relatively short period of time since the Ridgewoods took over. Cf. Pascarell for & on
Behalf of N.L.R.B. v. Vibra Screw Inc., 904 F.2d 874, 879-81 (3d Cir. 1990). This case is
about whether the Ridgewoods are the successor to Preferred and, if so, their duty to bargain
with the Union. The Director has not cited the court to any evidence that convinces the court
the Union will be unable to resume its role as an effective bargaining agent for the
Ridgewoods’ employees when and if the NLRB orders the Ridgewoods to recognize and
bargain with the Union.
The NLRB in a successor case can order the successor employer to recognize and to
negotiate with the incumbent Union, it can order instatement, and it can order all changes to
be backed out. Nothing in the evidence of this case supports a finding that such orders in this
case would be meaningless or futile because the Union has lost support and/or leadership,
which it has built over the decades of representing the facility’s employees. Certainly the
Union and Local President Dudley appear ready and able to resume representing the
bargaining unit employees. If the Union is recognized as the employees’ representative by
the Order of the NLRB, its purpose will certainly be revitalized.
Therefore, the court finds that the Director has not shown that immediate injunctive
relief is necessary in order to ensure that the final order of the NLRB is not meaningless or
futile.

35

CONCLUSION
For the foregoing reasons, the court is of the opinion that the Director has failed to
show that immediate injunctive relief, pursuant to § 10(j) of the NLRA, is just and proper.
An Order denying the Director’s Petition for Injunction under Section 10(j) of the National
Labor Relations Act, as Amended, (doc. 1), will be entered contemporaneously with this
Memorandum Opinion.
DONE this 22nd December, 2015.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

36