Fernbach v. Sprain Brook Manor Rehab, LLC et al
Filing
36
OPINION AND ORDER re: 4 MOTION TO TRY PETITION FOR TEMPORARY INJUNCTION re: 2 Petition (Other) filed by Karen P. Fernbach. For the reasons stated above, the Court grants Petitioner's motion for a temporary injunction and de nies Budget's motions. The Court finds that there is reasonable cause to believe that Respondents SBM Rehab, Pinnacle, Budget, and Local 713 have engaged in serious and pervasive unfair labor practices in violations of Sections 8(a)(1), (2), (3) , (5), and 8(b)(1)(A) of the NLRA, and that injunctive relief is just and proper. Accordingly, IT IS HEREBY ORDERED THAT, pending the final disposition of the related matters pending before the Board, SBM Rehab, its officers, representatives, agents , servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the excl usive collective bargaining representative of employees in the Unit; (b) Subcontracting or otherwise performing Unit work with non-Unit employees in retaliation for its employees assisting 1199 SEIU and/or to discourage employees from engaging in tho se activities and/or without first providing 1199 SEIU with notice and the opportunity to bargain either to an agreement concerning the decision to subcontract or overall impasse on a collective bargaining agreement; as set forth herein. IT IS FU RTHER ORDERED THAT SBM Rehab take the following affirmative actions: (a) Within fourteen (14) days of the issuance of this Order, rescind the current subcontracts for the performance of Unit dietary, nursing, housekeeping and laundry work, restore such work to the bargaining Unit; and offer immediate interim reinstatement to all employees currently performing Unit work, with the terms and conditions of employment that existed for those positions on September 12, 2012; (b) Within fourteen (14) days of this Order, offer immediate reinstatement to Unit employees Clarisse Nogueira and Alvin Nicholson to their former job positions and working conditions, as they existed on or about September 12, 2012, with the terms and conditions of employme nt that existed on September 12, 2012, or if those job positions no longer exists, to substantially equivalent positions, displacing, if necessary, any workers contracted for, hired, or reassigned to replace them, without prejudice to their seniorit y or any other rights or privileges previously enjoyed; (c) Withdraw recognition from Local 713 as the purported collective bargaining representative of any Unit employees; as set forth herein. IT IS FURTHER ORDERED THAT, pending the final disposi tion of the related matters pending before the Board, Pinnacle, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restra ined from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the exclusive collective bargaining representative of employees in the Dietary Unit; (b) Implementing changes to the terms and conditions of employment of e mployees in the Dietary Unit that are mandatory subjects for the purposes of collective bargaining without first providing 1199 SEIU with notice and the opportunity to bargain either to an agreement concerning the change or overall impasse on a colle ctive bargaining agreement; (c) Terminating, or causing the termination of, employees because of their support for and activities on behalf of 1199 SEIU and to discourage employees from engaging in these activities; as set forth herein. IT IS FU RTHER ORDERED THAT Pinnacle take the following affirmative actions: (a) Rescind any and all collective bargaining agreements with Local 713 as they relate to the Dietary Unit employees; (b) Within five (5) days of the issuance of the Court's ord er, mail a copy of this Order to the homes of all current Pinnacle's employees, supervisors, and managers employed at the Facility, and maintain proofs of mailing as required by this Order; and (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the Board for Region 2, a sworn affidavit from a responsible official of Pinnacle, setting forth with specificity the manner in which Pinnacle complied an d will continue to comply with the terms of the decree, including the location of the documents to be posted under the terms of this decree. IT IS FURTHER ORDERED THAT, pending the final disposition of the related matters pending before the Board, Bu dget, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the exclusive collective bargaining representative of employees in the Nursing Unit; as set forth herein. IT IS FURTHER ORDERED THAT Budget take the following affirmative actions: (a) Rescind any and all co llective bargaining agreements with Local 713 as they relate to the Nursing and Dietary Unit employees; (b) Within five (5) days of the issuance of the Courts order, mail a copy of this Order to the homes of all current Budget employees, supervisors, and managers employed at the Facility, and maintain proofs of mailing as required by this Order; (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the Board for Region 2, a sworn affidavit from a responsible official of Budget, setting forth with specificity the manner in which Budget complied and will continue to comply with the terms of the decree, including the location of the documents to be p osted under the terms of this decree. IT IS FURTHER ORDERED THAT, pending the final disposition of the related matters pending before the Board, Local 713, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Entering into and/or maintaining a collective bargaining agreement with SBM Rehab, Pinnacle, Budget and/or any other entity purpo1ting to cov er employees employed at the Facility; as set forth herein. IT IS FURTHER ORDERED THAT Local 713 take the following affirmative actions: (a) Rescind any and all collective bargaining agreements with SBM Rehab, Pinnacle, Budget, or any other entity purporting to cover any and all Unit employees employed at the Facility; (b) Within five (5) days of the issuance of the Court's order, mail a copy of this Order to the homes of all employees employed at the Facility and covered by a collective bargaining agreement between Local 713 and SBM Rehab, Pinnacle, Budget and/or any other entity; and (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the B oard for Region 2, a sworn affidavit from a responsible official of Local 713, setting forth with specificity the manner in which Local 713 complied and will continue to comply with the terms of the decree, including the location of the documents to be posted under the terms of this decree. (Signed by Judge Richard J. Sullivan on 3/9/2015) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 14-cv-9859 (RJS)
_____________________
KAREN P. FERNBACH, REGIONAL DIRECTOR,
REGION 2, NATIONAL LABOR RELATIONS BOARD,
FOR AND ON BEHALF OF THE NATIONAL
LABOR RELATIONS BOARD,
Petitioner,
VERSUS
SPRAIN BROOK MANOR REHAB, LLC; BUDGET SERVICES, INC.;
PINNACLE DIETARY, INC.; and LOCAL 713, INTERNATIONAL
BROTHERHOOD OF TRADE UNIONS,
Respondents.
__________________
OPINION AND ORDER
MARCH 9, 2015
__________________
RICHARD J. SULLIVAN, District Judge:
Karen P. Fernbach, Regional Director for
Region 2 of the National Labor Relations
Board (“Petitioner”), brings this action
against Respondents Sprain Brook Manor
Rehab, LLC (“SBM Rehab”), Pinnacle
Dietary, Inc. (“Pinnacle”), Budget Services,
Inc. (“Budget”), and Local 713, International
Brotherhood of Trade Unions (“Local 713”)
(collectively, “Respondents”) pursuant to
Section 10(j) of the National Labor Relations
Act (“NLRA”). (Doc. No. 2.) Now before
the Court is Petitioner’s motion for a
temporary injunction pending resolution of
the parallel administrative hearing currently
proceeding before an administrative law
judge. (Doc. No. 4.) Also before the Court
is a motion from Budget seeking to stay the
proceedings before this Court. (Doc. No. 23.)
The Court heard argument on the motions on
January 28, 2015. For the reasons set forth
below, Petitioner’s motion is granted and
Budget’s motions are denied.
I. BACKGROUND
A. Facts 1
Prior to 2009, Sprain Brook Manor
Nursing Home LLC (“SBM Nursing Home”)
operated a nursing home located at 77
Jackson Avenue, Scarsdale, New York (the
“Facility”). The Facility was staffed by
approximately 85-100 employees, who
provided dietary, recreational therapy, and
residential services to the approximately 120
residents of the Facility. On June 29, 2006,
1199 SEIU United Healthcare Workers East
(“1199 SEIU”) was certified as the exclusive
September 2009, October 2009, August
2010, and June 2011.
(Pet. Ex. E.)
Throughout, SBM Rehab’s principals
consistently presented themselves as
representing the employer and manager of
1199 SEIU members. (Id.)
bargaining representative of a particular
group of non-professional employees at the
Facility. Sprain Brook Manor Nursing
Home, LLC, 351 NLRB 1190, 1196 (2007).
In 2007, SBM Nursing Home began
negotiating the sale of the Facility to SBM
Rehab, and, on August 18, 2009, the parties
entered into a Sale Agreement. (Pet. Ex. 9.)
The Sale Agreement effectively transferred
all of SBM Nursing Home’s assets to SBM
Rehab and stated that “[SBM Rehab] shall be
entitled to any profit accrued with respect to
the period from and after [January 1, 2007]
and shall bear any loss with respect to the
period from and after [January 1, 2007].”
(Pet. Ex. 7 at 32.) The Sale Agreement
identified
Sam
Strulovitch,
Lazer
Strulovitch, Moses Friedman, Allan Stein,
and Leopold Schwimmer as the principals of
SBM Rehab, and provided that these
individuals would have management
responsibility over the Facility pending the
sale’s closing. (Pet. Ex. 7.) Specifically, the
Sale Agreement provided that the parties
would “cooperate with one another to operate
the business of the Facility in the ordinary
course.” (Pet. Ex. 7 at 44-45.)
On April 6, 2012, the New York State
Public Health and Health Planning Council
issued final non-contingent approval to SBM
Rehab, which under the Sale Agreement,
triggered the ninety-day period by which the
closing of the sale was required to take place.
(Pet. Ex. 14.) On June 15, 2012, a few weeks
before the ninety-day deadline, Allan Stein
attested to Medicare that the change of
ownership had taken place that day. (Pet. Ex.
15.) Although SBM Rehab continued to act
as the employer and operator of the Facility,
as it had been for several years, SBM Rehab
did not inform 1199 SEIU or the employees
of the Facility that the change in ownership
was formally and legally finalized until
September 12, 2012, when it unilaterally
made several substantial changes to the
working conditions of Facility employees.
(Pet. Exs. C & E.)
On September 12, 2012, SBM Nursing
Home sent letters to Facility employees
stating that “[e]ffective 9/13/12 a change of
ownership will occur” and that therefore
“your position with [SBM Nursing Home]
has been terminated.” (Pet. Ex. 22 at 22-23;
Pet. Ex. 23 at 32.) On the same day, SBM
Rehab sent its own set of letters informing
employees that they had the opportunity to be
immediately rehired, with the same work
schedule, by a subcontractor. SBM Rehab
referred housing and maintenance employees
to Confidence Management System (CMS)
(Pet. Ex. 22 at 24), dietary employees to
Pinnacle Dietary (Pet. Ex. 22 at 25), and
nursing employees to Budget (Pet. Ex. 23 at
33).
As a result of SBM Rehab’s
subcontracting to Budget, Pinnacle, and
CMS, Facility employees’ terms and
On November 25, 2009, SBM Rehab
submitted a Certificate of Need Application
to the Department of Health Bureau of
Project Management, seeking New York
State Public Health Council approval to
establish itself as the new operator of the
Facility. (Pet. Ex. 9.) In its application, SBM
Rehab asserted that it understood “the
importance of maintaining staff continuity,”
and that it would enact a plan of action related
to the “retention of existing staff” to foster
“the best possible working conditions” and
“maintain a competitive salary and benefit
structure” for the next two years “based on
existing staffing pattern.” (Id.) To this end,
principals of SBM Rehab participated in
bargaining sessions with 1199 SEIU in
November 2008, March 2009, July 2009,
2
On December 28, 2012, 1199 SEIU filed
a second action with the Board, alleging that
Local 713 violated Sections 8(b)(1)(A) and
(2) of the NLRA. On January 30, 2013 and
July 22, 2013, 1199 SEIU filed amended
charges in that action.
conditions – including wages, paid sick and
vacation leave, and health insurance –
materially changed. (Pet. Exs. C & D.) SBM
Rehab hired these subcontractors three
months after it took formal ownership of the
Facility, three years after it began managing
and operating the Facility, and without any
input from 1199 SEIU. (Pet. Exs. 16, 17 &
19.) Moreover, with respect to the changes
implemented by these subcontracting
contracts, 1199 SEIU requested the
opportunity to bargain with SBM Rehab and
the subcontractors, but was rebuffed. (Pet.
Exs. 45-50.)
Petitioner
then
commenced
an
investigation of the charges, and on July 31,
2014, filed a Complaint with the Board
alleging that Respondents SBM Rehab and
Pinnacle engaged in, and are engaging in,
unfair labor practices within the meaning of
Section 8(a)(1), (2), (3), and (5) of the NLRA,
and that Local 713 engaged in, and is
engaging in, unfair labor practices within the
meaning of Section 8(b)(1)(A) of the NLRA.
On October 6, 2014 and November 17, 2014,
Petitioner filed amended pleadings with the
Board, adding Budget as a Respondent. On
October 6, 2014, administrative hearings
began before Administrative Law Judge
Kenneth W. Chu (“Judge Chu”). Hearings
continued until October 10, 2014 and then
recessed until December 15-16, 2014.
Additional hearing dates are scheduled
through March 2015.
Instead, SBM Rehab cultivated a
relationship with another union, Local 713,
for itself and for its contractors. Specifically,
SBM Rehab allowed Local 713 to recruit
employees at the Facility; Pinnacle
distributed Local 713 membership and
insurance cards to dietary employees, telling
them that their jobs were contingent on
completing the Local 713 paper work; and
Budget signed an agreement that recognized
Local 713 as representing Budget’s dietary
employees at the Facility. (Pet. Exs. 52, 54
& 55.) To further establish support for Local
713 and erode support for 1199 SEIU, SBM
Rehab discharged three Facility employees –
Clarisse Nogueira, Alvin Nicholson, and
Vernon Warren – because they were 1199
SEIU supporters. Although Warren was
ultimately reinstated, Nicholson and
Noguiera remain unemployed. (Pet. Exs. C,
D & E.)
On December 12, 2014, during the
pendency of the administrative proceedings,
Petitioner filed a petition for a temporary
injunction pursuant to section 10(j) of the
NLRA. (Doc. No. 2.) On January 12, 2015,
Respondents SBM Rehab, Pinnacle, and
Budget filed their opposition briefs (Doc.
Nos. 14, 20 & 21), and on January 23, 2015,
Petitioner filed its reply in support of its
petition for temporary injunction (Doc. No.
30).
B. Procedural History
On September 19, 2012, 1199 SEIU filed
charges with the National Labor Relations
Board (“Board”), alleging that SBM Rehab
violated Sections 8(a)(1), (2), (3), (4), and (5)
of the NLRA. On November 27, 2012, July
15, 2013, and July 22, 2013, 1199 SEIU filed
amended charges with the Board.
On January 19, 2015, Budget filed a
proposed order to show cause, seeking the
recusal of Judge Chu in the administrative
proceedings and a stay of the proceedings
before this Court. (Doc. No. 23.) On January
26, 2015, Petitioner filed its opposition to
Budget’s motions (Doc. No. 32), and on
3
flawed.”
Silverman v. Major League
Baseball Player Relations Comm., Inc., 67
F.3d 1054, 1059 (2d Cir. 1995) (citing
Kaybard v. Mego Corp., 633 F.2d 1026, 1031
(2d Cir. 1980); Kaybard v. Palby Lingerie,
Inc., 625 F.2d 1047, 1051 (2d Cir. 1980)).
Therefore, where “there are disputed issues
of fact in the case, the [petitioner] should be
given the benefit of the doubt,” Seeler v.
Trading Port, Inc., 517 F.2d 33, 36-37 (2d
Cir. 1975), such that a district court “should
sustain the NLRB’s version of the facts as
long as it is ‘within the range of rationality,’”
Blyer ex rel. NLRB v. P&W Elec., Inc., 141
F. Supp. 2d 326, 329 (E.D.N.Y. 2001)
(quoting Mego Corp., 633 F.2d at 1031).
District courts similarly defer to the NLRB’s
legal conclusions, sustaining its views
“unless the court is convinced that it is
wrong.” Palby Lingerie, Inc., 625 F.2d at
1051.
January 28, 2015, Budget filed its reply (Doc.
No. 34). The Court heard oral argument on
Petitioner’s and Budget’s motions on January
28, 2015.
II. PETITIONER’S INJUNCTION MOTION
Pursuant to section 10(j) of the NLRA,
the Board “shall have power, upon issuance
of a complaint . . . charging that any person
has engaged in or is engaging in an unfair
labor practice, to petition any United States
district court, . . . for appropriate temporary
relief or restraining order . . . and [such
district court] shall have jurisdiction to grant
to the Board such temporary relief or
restraining order as it deems just and proper.”
29 U.S.C. § 160(j). The Second Circuit
employs a two-pronged inquiry when
determining whether to grant section 10(j)
injunctive relief. “First, the court must find
reasonable cause to believe that unfair labor
practices have been committed. Second, the
court must find that the requested relief is just
and proper.” Kreisberg v. HealthBridge
Mgmt., LLC, 732 F.3d 131, 141 (2d Cir.
2013) (quoting Hoffman ex rel. NLRB v. Inn
Credible Caterers, Ltd., 247 F.3d 360, 36465 (2d Cir. 2001)).
When evaluating whether relief is just
and proper, district courts apply “traditional
equitable principles governing equitable
relief,” but do so “in the context of federal
labor laws.” HealthBridge, 732 F.3d at 141
(quoting Inn Credible Caterers, 247 F.3d at
368-69). In the Second Circuit, injunctive
relief is “just and proper” when “it is
necessary to prevent irreparable harm or to
preserve the status quo.” HealthBridge, 732
F.3d at 142 (quoting Inn Credible Caterers,
247 F.3d at 368). The status quo that must be
preserved or restored is that which “existed
before the onset of unfair labor practices.”
Trading Port, Inc., 517 F.2d at 38. As to
irreparable harm, district courts consider
“whether
the
employees’
collective
bargaining rights may be undermined by
the . . . [alleged] unfair labor practices and
whether any further delay may impair or
undermine such bargaining in the future.”
HealthBridge, 732 F.3d at 142 (quoting Inn
Credible Caterers, 247 F.3d at 369). The
“main focus of a section 10(j) analysis should
be on harm to organizational efforts.”
In determining whether a petitioner has
adequately demonstrated reasonable cause to
believe that unfair labor practices have been
committed, a district court “does not need to
make a final determination [that] the conduct
in question constitutes an unfair labor
practice,” and therefore need not conduct an
evidentiary hearing.
Id. (quoting Inn
Credible Caterers, 247 F.3d at 365). Rather,
courts give the NLRB’s “reasonable cause”
determinations
significant
deference.
Paulsen v. Remington Lodging & Hosp.,
LLC, 773 F.3d 462, 469 (2d Cir. 2014) (citing
Inn Credible Caterers, 247 F.3d at 365).
Indeed, a “district court should decline to
grant relief only if convinced that the
NLRB’s legal or factual theories are fatally
4
conscious decision to maintain generally the
same business and to hire a majority of its
employees from the predecessor.” Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S.
27, 41 (1987). The Supreme Court has
interpreted section 8(a)(5) to prohibit an
employer from unilaterally changing those
conditions of employment that are the subject
of mandatory bargaining without notice to
the union and an opportunity to bargain.
NLRB v. Katz, 369 U.S. 736, 743 (1962).
Mandatory bargaining conditions include
“wages, hours, and other terms and
conditions of employment,” NLRB v. BorgWarner Corp., 356 U.S. 342, 349 (1958),
such as whether the employer subcontracts
employee work where the employer “merely
replaced existing employees with those of an
independent contractor to do the same work
under similar conditions of employment,”
Fibreboard Paper Prods. Corp. v. NLRB,
379 U.S. 203, 213 (1964).
Remington Lodging & Hosp., 773 F.3d at
469.
A. Reasonable Cause
The Court’s analysis begins with the
reasonable cause prong of the section 10(j)
inquiry.
To succeed, Petitioner must
establish that there is reasonable cause to
believe that Respondents have violated the
NLRA in the ways that Petitioner alleges.
Specifically, Petitioner must demonstrate that
there is reasonable cause to believe that: (1)
Respondents SBM Rehab, Pinnacle, and
Budget violated section 8(a)(5) of the NLRA;
(2) Respondents SBM Rehab, Pinnacle, and
Budget violated section 8(a)(3) of the NLRA;
(3) Respondents SBM Rehab, Pinnacle, and
Budget violated section 8(a)(2) of the NLRA;
and (4) Respondent Local 713 violated
section 8(b)(1)(A) of the NLRA. The Court
will address each in turn.
1. Section 8(a)(5) of the NLRA
Courts apply a three-factor test in
determining when a new employer – referred
to as a “successor” employer – must abide by
section 8(a)(5).
First, courts consider
whether there is a “substantial continuity”
between the predecessor and successor
businesses. Fall River Dyeing, 482 U.S. at
43.
In determining whether there is
“substantial continuity,” courts assess
“whether the business of both employers is
essentially the same; whether the employees
of the new company are doing the same jobs
in the same working conditions under the
same supervisors; and whether the new entity
has the same production process, produces
the same products, and basically has the same
body of customers.” Id.
Section 8(a)(5) of the NLRA provides
that “it shall be an unfair labor practice for an
employer to refuse to bargain collectively
with the representatives of his employees.”
29 U.S.C. § 158(a)(5). An employer that
violates Section 8(a)(5) of the NLRA also
commits a “derivative” violation of Section
8(a)(1) of the NLRA, which provides that “it
shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce
employees in the exercise of the[ir] right” to
“self-organization, to form, join, or assist
labor organizations, [and] to bargain
collectively through representatives of their
own choosing.” 29 U.S.C. §§ 157 &
158(a)(1). See Allied Chem. & Alkali
Workers of America v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 163 n.6 (1971).
Second, courts must determine whether a
majority of the employees hired by the
successor were employed by the predecessor.
NLRB v. Burns Int’l Sec. Servs., Inc., 406
U.S. 272, 279 (1972). Where there is a lag
between when the successor begins
The Supreme Court has held that “the
bargaining obligation of section 8(a)(5) is
activated” when a “new employer makes a
5
supervised the employees; or (5) participated
in the collective bargaining process.” AT&T
v. NLRB, 67 F.3d 446, 451 (2d Cir. 1995)
(citing Clinton’s Ditch, 778 F.2d at 188-89).
managing the business and when the
successor formally takes ownership of the
business, courts look to the date that the
successor functionally “took control” of the
management and operation of the business.
East Belden Corp., 239 NLRB 776, 792
(1978). However, “[w]hen an employer who
has not yet commenced operations announces
new terms prior to or simultaneously with his
invitation to the previous workforce to accept
employment,” the successor employer need
not first bargain with the employees’
bargaining representative. Spruce Up Corp.,
209 NLRB 194, 195 (1974) (citing Burns
Int’l, 406 U.S. at 294).
Petitioner asserts that SBM Rehab took
formal ownership of the Facility from SBM
Nursing Home on June 15, 2012, when a
principal of SBM Rehab represented as much
to Medicare. (Pet. Ex. 15.) SBM Rehab, by
contrast, stresses that formal ownership did
not transfer until September 13, 2012. (SBM
Rehab Opp. at 27.) Granting Petitioner “the
benefit of the doubt” as to this factual dispute,
as the Court must, the Court is persuaded that
there is reasonable cause to believe that SBM
Rehab became a successor employer and
took control of the Facility by June 15, 2012
at the latest – and likely much earlier. The
facts alleged also give the Court reasonable
basis to believe that SBM Rehab took control
of the Facility at some point during the period
of August 18, 2009 to June 15, 2012, since
SBM Rehab managed the Facility, controlled
labor relations, met with 1199 SEIU
representatives, collected the Facility’s
profits, and assumed responsibility for its
liabilities during this transition period.
Third, courts must determine whether
“the bargaining unit that a union seeks to
represent remains appropriate under the
successor’s operations.” Banknote Corp. of
America, Inc. v. NLRB, 84 F.3d 637, 642 (2d
Cir. 1996) (citing Burns Int’l, 406 U.S. at
280). Courts typically find a bargaining unit
to be appropriate when a successor purchases
the predecessor’s entire operation and keeps
the employees of the unit intact. See, e.g., id.
at 650.
If a court concludes that the successoremployer falls within the strictures of section
8(a)(5) under the three-pronged test, the court
must also determine whether others
responsible for operating and managing the
business, such as subcontractors, also are
bound by section 8(a)(5) and are liable for
any of the successor-employer’s violations of
section 8(a)(5). In the Second Circuit, this
inquiry
focuses
on
whether
the
subcontractors
exercise
sufficient
“immediate control” over the employees.
Clinton’s Ditch Coop. Co. v. NLRB, 778 F.2d
132, 138 (2d Cir. 1985). Courts consider
“whether the alleged joint employer (1) did
the hiring and firing; (2) directly
administered any disciplinary procedures; (3)
maintained records of hours, handled the
payroll, or provided insurance; (4) directly
Furthermore, Petitioner has established
that SBM Rehab engaged in substantially the
same business as SBM Nursing Home, with
the same customers and the same employees
doing the same work under the same working
conditions with the same supervisors. (Pet.
Ex. C.) SBM Rehab represented as much to
the New York State Department of Health in
its Certificate of Need Application (Pet. Ex.
6 at 17-20) and in the document it presented
to 1199 SEIU at the October 19, 2009
bargaining session (Pet. Ex. 43). Petitioner
has also secured testimony from employees
who attest that in all material respects there
were no changes to the way the Facility was
operated and managed before and after June
2012. (Pet. Exs. C & D.)
6
that bargaining demands from the exclusive
collective bargaining representative prior to
the official transfer of ownership remain
outstanding until an employer becomes a
successor. 482 U.S. at 52. A representative
from 1199 SEIU made such a demand on
December 10, 2010, when he sent a letter to
SBM Rehab to request an opportunity to
bargain on behalf of Facility employees.
(Pet. Exs. 52 & 54.)
Accordingly, because Petitioner has
sufficiently shown that SBM Rehab was a
successor employer and did not announce
new terms prior to or simultaneously with its
taking over, SBM Rehab had a legal
obligation to recognize and bargain with
1199 SEIU at the latest by June 15, 2012.
Petitioner has put forth more than sufficient
allegations to establish reasonable cause that
SBM Rehab refused to recognize and bargain
with 1199 SEIU. Specifically, the record
reflects that an 1199 SEIU representative
contacted principals of SBM Rehab by letter
on September 13, 2012 and October 8, 2012,
opposing the changes to employees’
contracts and requesting an opportunity to
bargain over them, to no avail. (Pet. Exs. 45
& 46.) Put simply, SBM Rehab refused to
recognize and bargain with 1199 SEIU as it
was required to. (Id.) Accordingly, the Court
finds there is reasonable cause to believe that
SBM Rehab violated section 8(a)(5) of the
NLRA.
Similarly, the Court finds that there is a
reasonable basis to find that Budget and
Pinnacle are joint employers who are liable
under section 8(a)(5). With respect to dietary
employees, Petitioner has alleged that
Pinnacle and SBM Rehab entered into a
contract that set forth shared responsibility
for labor relations, and that Budget entered
into a collective bargaining agreement with
Local 713. (Pet. Exs. 52, 54 & 55.) With
respect to nursing employees, Budget and
SBM Rehab shared responsibility for labor
relations and management by, for example,
providing that SBM Rehab would employ the
department head who directed the daily work
duties of employees, while Budget would
enter into a collective bargaining agreement
with Local 713. (Id.) Accordingly, the Court
finds that there is reasonable cause to believe
that Pinnacle and Budget also violated
section 8(a)(5) of the NLRA because they are
joint employers with SBM Rehab.
The Court also finds that Petitioner has
satisfactorily alleged that SBM Rehab
violated Section 8(a)(5) of the NLRA by
imposing unilateral changes to the terms of
Facility employees’ employment contracts
that were mandatory subjects of bargaining,
including wages, paid sick and vacation
leave, and health insurance. SBM Rehab also
chose to subcontract dietary, nursing, and
housekeeping
work
to
independent
contractors. (Pet. Exs. 22 & 23.) In so doing,
SBM Rehab did not change the scope or
direction of its business or eliminate the type
of work previously done by Facility
employees – indeed, its letters to the
Facility’s employees on September 12, 2012
emphatically state as much. (Id.)
2. Section 8(a)(3) of the NLRA
Section 8(a)(3) of the NLRA provides
that “it shall be an unfair labor practice for an
employer . . . to encourage or discourage
membership in any labor organization . . . in
regard to hir[ing] . . . or any term or condition
of employment.” 29 U.S.C. § 158(a)(3). An
employer that violates Section 8(a)(3) of the
NLRA also commits a “derivative” violation
of Section 8(a)(1) of the NLRA, which
provides that “it shall be an unfair labor
practice for an employer to interfere with,
SBM Rehab did not notify 1199 SEIU of
these subcontracting decisions in advance
(Pet. Ex. 45), despite the fact that it was
required to under the Falls River Dyeing
“continuing demand” rule, which provides
7
discharged Nogueira, Nicholson, and
Warren. Once again, the Court finds there is
reasonable basis to believe that SBM Rehab
principals directed a CMS manager to
discharge Nogueira in retaliation for her
union support, as she was fired the day after
she told a nursing employee that she was
represented by 1199 SEIU and that she did
not need to sign Local 713 enrollment or
health insurance cards.
(Pet. Ex. C.)
Petitioner likewise has established a
reasonable basis to believe that SBM Rehab
and Pinnacle unlawfully discharged
Nicholson and Warren in retaliation for their
support for 1199 SEIU and lack of support for
Local 713. Specifically, Nicholson was
terminated after he was seen handing out
leaflets on behalf of 1199 SEIU and refused
to complete the Local 713 enrollment card.
(Pet. Ex. E.) Warren, an 1199 SEIU delegate,
was discharged two days after he refused to
sign the Local 713 enrollment card. (Pet. Ex.
D.) Accordingly, the Court finds that
Petitioner has established reasonable cause to
believe that SBM Rehab and Pinnacle
violated section 8(a)(3) of the NLRA.
restrain, or coerce employees in the exercise
of the[ir] right” to “self-organization, to
form, join, or assist labor organizations, [and]
to
bargain
collectively
through
representatives of their own choosing.” 29
U.S.C. §§ 157 & 158(a)(1); see, e.g., Metro.
Edison Co. v. NLRB, 460 U.S. 693, 698 n.4
(1983).
The Supreme Court has made clear that
an employer violates section 8(a)(3) if it
“fires an employee for having engaged in
union activities and has no other basis for the
discharge, or if the reasons that [it] proffers
are pretextual.” NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 398 (1983). The Board
has interpreted section 8(a)(3) to encompass
not just employers discharging employees
because of anti-union animus, but also
employers disciplining employees or
subcontracting their work because of antiunion animus. See, e.g., Healthcare Emp.
Union, Local 399 v. NLRB, 463 F.3d 909,
918-19 (9th Cir. 2006) (listing circuit cases).
The Court finds that Petitioner has
presented sufficient facts to establish
reasonable cause to believe that SBM Rehab
violated section 8(a)(3). Petitioner alleges
that SBM Rehab signed a contract with
Pinnacle to perform dietary work at a time
that dietary employees were represented by
1199 SEIU. (Pet. Ex. 16.) That contract
“recognize[d] [the Facility] as a nonunionized facility” and provided that SBM
Rehab had the responsibility to pursue
“efforts to eliminate unionized activity” at
the Facility. (Id. at 76.) Furthermore, once
SBM Rehab subcontracted its work to
Pinnacle, Budget, and CMS, it denied all
access to 1199 SEIU representatives, assisted
a challenger union in gaining acceptance
among Facility employees, and discharged
supporters of 1199 SEIU. (Pet. Exs. D & E.)
3. Section 8(a)(2) of the NLRA
Section 8(a)(2) of the NLRA provides
that “it shall be an unfair labor practice for an
employer to dominate or interfere with the
formation or administration of any labor
organization or contribute financial or other
support to it.” 29 U.S.C. § 158(a)(2). An
employer that violates Section 8(a)(2) of the
NLRA also commits a “derivative” violation
of Section 8(a)(1) of the NLRA, which
provides that “it shall be an unfair labor
practice for an employer to interfere with,
restrain, or coerce employees in the exercise
of the[ir] right” to “self-organization, to
form, join, or assist labor organizations, [and]
to
bargain
collectively
through
representatives of their own choosing.” 29
U.S.C. §§ 157 & 158(a)(1); see, e.g.,
Petitioner also alleges that SBM Rehab
violated section 8(a)(3) when it unlawfully
8
4. Section 8(b)(1)(A) of the NLRA
Microimage Display Div. of Xidex Corp. v.
NLRB, 924 F.2d 245, 250 (D.C. Cir. 1991).
Section 8(b)(1)(A) of the NLRA provides
that “it shall be an unfair labor practice for a
labor organization or its agents to restrain or
coerce employees in the exercise of the[ir]
right” to “self-organization, to form, join, or
assist labor organizations, [and] to bargain
collectively through representatives of their
own choosing.” 29 U.S.C. §§ 157 &
158(a)(1).
The Second Circuit has held that section
8(a)(2) “makes it an unfair labor practice for
an employer to recognize and enter a
collective bargaining agreement with a union
that has not been selected by a majority of the
employees in the bargaining, regardless of
whether the employer believes in good faith
that the union has majority support.” NLRB
v. Katz’s Delicatessen of Houston St., 80 F.3d
755, 767 (2d Cir. 1996). This includes
assisting a rival, challenger union where there
is already an incumbent union in place. AT
Sys. W., Inc., 341 NLRB 57, 62 (2004). An
employer also violates section 8(a)(2) if it
directs or asks employees to sign
authorization cards for a particular union, or
if it conditions employment, wages, or
benefits on employees signing union
authorization cards for a specific union. See,
e.g., Baby Watson Cheesecake, Inc., 320
NLRB 779, 785 (1996).
Because the Court has found that
Petitioner has established a reasonable basis
to conclude that SBM Rehab, Pinnacle, and
Budget violated section 8(a)(2), it naturally
follows that Local 713 violated section
8(b)(1)(A), which “makes it an unfair labor
practice for a union without majority support
to accept an employer’s recognition.” Katz’s
Delicatessen, 80 F.3d at 767.
Representatives from Local 713 accepted
SBM Rehab’s assistance by posting a sign in
the Facility announcing their presence and
meeting with employees on company time at
the Facility. (Pet. Ex. D.) Local 713 also
entered into collective bargaining agreements
to cover dietary and nursing employees and
accepted dues from Budget despite the fact
that Local 713 did not represent an uncoerced
majority of employees. (Pet. Exs. 52 & 54.)
Accordingly, Petitioner has demonstrated
reasonable cause to believe that Local 713
violated section 8(b)(1)(A) of the NLRA by
accepting
unlawful
assistance
and
recognition from SBM Rehab, Pinnacle, and
Budget.
Petitioner has set forth sufficient facts to
give the Court a reasonable basis to conclude
that SBM Rehab, Pinnacle, and Budget
recognized and assisted Respondent Local
713 in violation of section 8(a)(2). As noted
above, Petitioner alleges that supervisors
from SBM Rehab, Pinnacle, and Budget
distributed Local 713 membership and
insurance cards and told employees that their
employment or benefits were contingent on
signing the Local 713 cards. (Pet. Exs. C &
D.) Budget also signed an agreement
recognizing Local 713 as covering dietary
employees, informed nursing employees that
the terms and conditions of their employment
were determined by their membership in
Local 713, and deducted Local 713 dues from
Facility employees’ paychecks. (Pet. Exs.
52, 54 & C.)
B. Just and Proper
Having found reasonable cause to believe
that Respondents violated the NLRA, the
Court now turns to whether the relief sought
by Petitioner is just and proper. Here,
Petitioner asks the Court to order SBM Rehab
to (1) rescind its subcontracts relating to
9
Exs. C, D & E.) Furthermore, since the
administrative hearing remains pending, any
final Board order is likely several months
away. And even assuming that much of the
delay in this case is due to Petitioner’s
dilatory
prosecution,
rather
than
Respondents’ obstructionist litigation tactics,
the Court is not to punish employees for such
delay.
Additionally, other courts have
granted section 10(j) relief for similarly
lengthy delays. See Frankl v. HTH Corp.,
650 F.3d 1334, 1341 (9th Cir. 2011)
(upholding an injunction where three years
passed between union filing charges with the
Board and petitioner filing a petition with the
court); Muffley v. Spartan Mining Co., 570
F.3d 534, 544-45 (4th Cir. 2009) (upholding
injunction where eighteen months elapsed
between petitioner filing a complaint with the
Board and petitioner filing a petition with the
court); Paulsen v. Renaissance Equity
Holdings, LLC, 849 F. Supp. 2d 335, 361
(E.D.N.Y. 2012) (granting injunction where
fourteen months elapsed between the date
when union filed charges with the Board and
petitioner filed a petition with the court).
Accordingly, the Court concludes that the
passage of time in this case, while far longer
than desirable, does not render the injunctive
relief improper.
Facility employees’ work and offer interim
employment to all Facility employees; (2)
offer interim reinstatement to unlawfully
discharged employees Nogueira and
Nicholson; (3) rescind recognition of any
collective bargaining agreements with Local
713; and (4) recognize and bargain with 1199
SEIU as the exclusive collective bargaining
representative of Facility employees.
Respondents argue that Petitioner’s
requested injunctive relief is not just and
proper because too much time has passed
since the violations were committed and the
Complaint was filed with the Board. The
Second Circuit recently stated that it
“certainly reject[s] the notion that the passage
of time, alone, is sufficient to justify rejecting
a section 10(j) petition.” Remington Lodging
& Hosp., 773 F.3d at 471.
Rather,
“[d]elay . . . should not be taken into
consideration unless between the alleged
unfair labor practices and the filing of the
petition circumstances have changed that
affect the appropriateness of such relief,” – in
other words, unless “the relief requested by
the Regional Director would not restore the
status quo.” Blyer v. Pratt Towers, Inc., 124
F. Supp. 2d 136, 147 (E.D.N.Y. 2000).
Furthermore, “it is inappropriate to punish
employees for the Regional Director’s
delay.” Id. Finally, when determining
whether delay militates against granting
section 10(j) relief, courts should consider
how much of the delay is attributable to the
time necessary for the NLRB to investigate
the charges and to the litigation tactics of the
respondents. P&W Elec., Inc., 141 F. Supp.
2d at 332.
1. Interim Rescission of Subcontracts
Petitioner seeks an order requiring SBM
Rehab to rescind its subcontracts relating to
Facility employees’ work, including SBM
Rehab’s subcontracts with Pinnacle and
Budget, and to offer employment to all
Facility employees with the terms and
conditions of employment as they existed on
September 12, 2012. Courts have recognized
that interim rescission orders are the default
remedy when employers violate section
8(a)(5) by enacting unilateral changes to
critical terms and conditions, such as by
decreasing wages, eliminating paid sick and
vacation leave, and subcontracting their
Here, Respondents have not made a
showing that so much time has passed since
the violations occurred that the relief
requested by Petitioner could not effectively
restore the status quo ante. Certainly, the
individual employees and ousted union have
demonstrated a desire to be reinstated. (Pet.
10
employees is routinely granted as part of
section 10(j) injunctive relief to prevent the
“chilling effect” that otherwise takes hold
among remaining employees. See Kaynard
v. Palby Lingerie, Inc., 625 F.2d 1047, 1053
(2d Cir. 1980) (listing cases). Given the
presumptions applicable at this stage of the
proceeding, the Court concludes that interim
reinstatement of Nogueira and Nicholson –
Warren has already been reinstated – is just
and proper.
operations. See, e.g., Power, Inc. v. NLRB,
40 F.3d 409, 425 (D.C. Cir. 1994) (holding
that “[o]nce unlawful contracting is found,”
an order “to resume unlawfully subcontracted
operations” is “presumptively a valid
remedy”) (citing Fibreboard, 379 U.S. at
216-17). Only if the employer shows that
“compliance with the order is unduly
economically burdensome” because it
“would require a substantial outlay of new
capital or otherwise cause undue financial
hardship” should a court deny this remedy
when the employer unlawfully, unilaterally
subcontracts its operations. Teamsters Local
No. 171 v. NLRB, 863 F.2d 946, 957-58 (D.C.
Cir. 1988).
3. Rescission of Local 713
Petitioner seeks an order requiring SBM
Rehab to rescind its recognition of
Respondent Local 713 and any collective
bargaining agreements with Local 713.
Courts have recognized that permitting an
employer to continue to recognize and
bargain with an unlawful rival union
undermines employees’ right to choose their
collective bargaining representative and
harms the rightful union’s organizational
efforts. See Mego Corp., 633 F.2d at 1035
(affirming rescission order under section
10(j) that district court granted after finding
that there was reasonable cause to believe the
union had violated section 8(b)(1)(A)). A
rescission order is just and proper in this case
because permitting SBM Rehab to continue
to recognize Local 713 would likely confer
unwarranted legitimacy on Local 713, further
eroding employees’ support for 1199 SEIU,
and would force an unwanted union on the
employees, further eroding employees’ faith
in the collective bargaining process.
Petitioner has alleged facts establishing
that Respondents’ subcontracting fractured
employees into separate units and forced
employees to work with inferior wages,
terms, and conditions of employment.
Petitioner has also shown that these
conditions, if left unaddressed, could
continue to undermine support for 1199
SEIU and further entrench Local 713, which
threatens to erode the efficacy of a final
Board order.
(Pet. Exs. D & E.)
Furthermore, Respondents fail to put forth
any cost estimates associated with rescission
to support their undue burden argument.
Accordingly, the Court finds that interim
rescission relief and reinstatement of Facility
employees’ ex ante employment terms and
conditions is just and proper to prevent
irreparable harm to 1199 SEIU’s
organizational efforts and to preserve the
status quo ante.
4. Interim Bargaining Order
2. Interim Reinstatement to Discharged
Employees
Petitioner also seeks an order directing
SBM Rehab to recognize and bargain with
1199 SEIU as the exclusive collective
bargaining representative for Facility
employees.
The Second Circuit has
repeatedly upheld injunctions under section
10(j) that included interim bargaining orders,
Petitioner also seeks an order directing
SBM Rehab to reinstate the discharged
employees who were unlawfully retaliated
against, Nogueira and Nicholson. Interim
reinstatement for unlawfully discharged
11
review whether Board administrative
proceedings are fair because “all questions of
the jurisdiction of the Board and the
regularity of its proceedings, [and] all
questions of constitutional right or statutory
authority, are open to examination by the
court [of appeals]” after there is a final Board
order in a case.
Myers v. Bethlehem
Shipbuilding Corp., 303 U.S. 41, 48 (1938).
The Supreme Court has recognized a narrow
exception to this rule when the Board acts
contrary to an explicit, mandatory provision
of the NLRA and normal means of securing
judicial review are unavailable. Leedom v.
Kyne, 358 U.S. 184, 188-90 (1958).
finding that such relief is often necessary to
restore the status quo ante. See Inn Credible
Caterers, Ltd., 247 F.3d at 369 n.7 (citing
Trading Port, 517 F.2d at 40; Palby Lingerie,
625 F.2d at 1054-55). The Court concludes
that an interim bargaining order is just and
proper here because, without it, SBM Rehab
arguably would continue to benefit from
violating its obligation to bargain with 1199
SEIU to the detriment of Facility employees
and 1199 SEIU.
III. BUDGET’S MOTIONS
On January 19, 2015, Budget sought an
order from this Court (1) disqualifying Judge
Chu in the pending administrative
proceedings, (2) directing the replacement
administrative law judge to hold all hearings
in the Board case de novo, and (3) staying the
Court’s consideration of Petitioner’s petition
for injunctive relief pending resolution of
Budget’s claim that its due process rights
were deprived. (Doc. No. 23.) Budget
asserts that such relief is warranted because
counsel for Petitioner had one ex parte
communication with Judge Chu about a
scheduling issue, and Judge Chu violated
Budget’s due process rights by permitting it
to be added as a party after the administrative
proceedings began. By letter dated January
21, 2015, Budget withdrew its allegations
about the impropriety of Judge Chu’s single
ex parte communication, and therefore is no
longer seeking an order disqualifying Judge
Chu.
(Doc. No. 32, Ex. 1 at 45.)
Nevertheless, Budget reaffirmed that it still
seeks an order nullifying the hearings that
have taken place before Judge Chu for
alleged due process deprivations, and an
order staying Petitioner’s petition for
injunctive relief pending this Court’s
resolution of Budget’s claim that its due
process rights were deprived.
Budget has not argued that Judge Chu
acted contrary to an explicit, mandatory
provision of the NLRA – nor is there any
evidence that he did – and Budget has not
argued that it cannot obtain full judicial
review of the administrative proceedings by
either the Second Circuit or the D.C. Circuit
following Judge Chu’s ruling. Accordingly,
under well-established Supreme Court
precedent, the Court finds that it lacks
jurisdiction to consider Budget’s motions.
Budget does not address Myers or
Leedom in arguing to the contrary. Rather,
Budget asserts that the Court has jurisdiction
based on a single district court case from
1968. Budget, however, failed to disclose
that this case – the sole legal support for its
claim that the Court has jurisdiction to enjoin
the Board – was reversed and remanded by
the District of Columbia Circuit on the
ground that the district court lacked
jurisdiction to enjoin the Board. McCulloch
v. Libbey-Owens-Ford Glass Co., 403 F.2d
916, 917 (D.C. Cir. 1968). Accordingly, the
Court also puts Budget’s counsel on notice
that future submissions that contain false
statements of the law, particularly when that
law forms the cornerstone of its legal
argument, will result in sanctions. See N.Y.
Rules of Prof’l Conduct R. 3.1 (“A lawyer
The Supreme Court has held that district
courts generally do not have jurisdiction to
12
shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless
there is a basis in law and fact for doing so
that is not frivolous . . .”); see also Morley v.
Ciba-Geigy Corp., 66 F.3d 21, 25 (2d Cir.
1995) (holding that district courts may
sanction counsel under Rule 11 for making
frivolous legal arguments that objectively
have no chance of success).
decision to subcontract or overall impasse on
a collective bargaining agreement;
(c) Denying representatives of 1199
SEIU access to the Facility for purposes of
meeting with SBM Rehab’s management
and/or Unit employees without first
providing 1199 SEIU with notice and the
opportunity to bargain either to an agreement
concerning that decision or overall impasse
on a collective bargaining agreement;
IV. CONCLUSION
(d) Implementing changes to the terms
and conditions of employment of employees
in the Unit that are mandatory subjects for the
purposes of collective bargaining without
first providing 1199 SEIU with notice and the
opportunity to bargain either to an agreement
concerning the change or overall impasse on
a collective bargaining agreement;
For the reasons stated above, the Court
grants Petitioner’s motion for a temporary
injunction and denies Budget’s motions. The
Court finds that there is reasonable cause to
believe that Respondents SBM Rehab,
Pinnacle, Budget, and Local 713 have
engaged in serious and pervasive unfair labor
practices in violations of Sections 8(a)(1),
(2), (3), (5), and 8(b)(1)(A) of the NLRA, and
that injunctive relief is just and proper.
(e) Terminating, or causing the
termination of, employees because of their
support for and activities on behalf of 1199
SEIU and/or to discourage employees from
engaging in these activities;
Accordingly,
IT
IS
HEREBY
ORDERED THAT, pending the final
disposition of the related matters pending
before the Board, SBM Rehab, its officers,
representatives, agents, servants, employees,
attorneys, successors and assigns, and all
persons acting in concert or participation
with it or them, are enjoined and restrained
from:
(f) Unlawfully assisting Local 713 by
ordering
Unit
employees
to
sign
authorization cards for Local 713 and
threatening employees with discharge, a loss
of benefits, and other reprisals for refusing to
sign authorization cards for Local 713;
(a) Failing and refusing to recognize and
bargain in good faith with 1199 SEIU as the
exclusive
collective
bargaining
representative of employees in the Unit 2;
(g) Unlawfully assisting Local 713 by
deducting dues from Unit employees’ pay
and remitting those dues to Local 713;
(h) Unlawfully assisting Local 713 by
entering into and/or maintaining a collective
bargaining agreement with Local 713
covering Unit employees; and
(b)
Subcontracting or otherwise
performing Unit work with non-Unit
employees in retaliation for its employees
assisting 1199 SEIU and/or to discourage
employees from engaging in those activities
and/or without first providing 1199 SEIU
with notice and the opportunity to bargain
either to an agreement concerning the
(i) In any other manner interfering with,
restraining or coercing employees in the
exercise of the rights guaranteed in Section 7
of the NLRA.
13
agreement is reached, embody
agreement in a signed document;
IT IS FURTHER ORDERED THAT
SBM Rehab take the following affirmative
actions:
such
(g) Provide 1199 SEIU with advanced
notice of any change(s) to the wages, hours,
and other terms or conditions of employment
of Unit employees and, upon request, bargain
either to an agreement over the intended
changes or overall impasse on a collective
bargaining agreement prior to implementing
the change(s);
(a) Within fourteen (14) days of the
issuance of this Order, rescind the current
subcontracts for the performance of Unit
dietary, nursing, housekeeping and laundry
work, restore such work to the bargaining
Unit; and offer immediate interim
reinstatement to all employees currently
performing Unit work, with the terms and
conditions of employment that existed for
those positions on September 12, 2012;
(h) Upon request of 1199 SEIU, restore
any and all of the Unit employees’ terms and
conditions of employment as they existed for
those positions on September 12, 2012 or
prior to the date SBM Rehab first
subcontracted Unit work;
(b) Within fourteen (14) days of this
Order, offer immediate reinstatement to Unit
employees Clarisse Nogueira and Alvin
Nicholson to their former job positions and
working conditions, as they existed on or
about September 12, 2012, with the terms and
conditions of employment that existed on
September 12, 2012, or if those job positions
no longer exists, to substantially equivalent
positions, displacing, if necessary, any
workers contracted for, hired, or reassigned
to replace them, without prejudice to their
seniority or any other rights or privileges
previously enjoyed;
(i) Within five (5) days of issuance of this
Order, post copies of this Order at the Facility
at all locations where notices to its employees
are customarily posted; maintain said
postings during the term of this Order, with
all employees to have free and unrestricted
access to said postings; and grant agents of
the Board reasonable access to said facility to
monitor compliance with this posting
requirement;
(e) Cease deducting Unit employee dues
for, and remitting dues to, Local 713;
(j) Within ten (10) days of issuance of the
Court’s Order, hold a mandatory meeting or
meetings at SBM Rehab’s facility on
working time, scheduled to ensure the widest
possible audience of employees, at which a
responsible management official, in the
presence of a Board agent (or, at SBM
Rehab’s option, a Board agent, in the
presence of a responsible management
official), shall read the Court’s Order; and
(f) Recognize and bargain collectively
and in good faith with 1199 SEIU as the
exclusive
collective
bargaining
representative of the Unit employees
concerning their wages, hours, and other
terms or conditions of employment and, if
(k) Within fourteen (14) days of the
issuance of the Court’s order, file with the
Court, with a copy submitted to the Regional
Director of the Board for Region 2, a sworn
affidavit from a responsible official of SBM
Rehab, setting forth with specificity the
(c) Withdraw recognition from Local
713 as the purported collective bargaining
representative of any Unit employees;
(d) Rescind any and all collective
bargaining agreements with Local 713
covering Unit employees;
14
manner in which SBM Rehab complied and
will continue to comply with the terms of the
decree, including the location of the
documents to be posted under the terms of
this decree.
employees’ pay and remitting those dues to
Local 713;
(f) Unlawfully assisting Local 713 by
entering into and/or maintaining a collective
bargaining agreement with Local 713
covering the Dietary Unit employees; and
IT IS FURTHER ORDERED THAT,
pending the final disposition of the related
matters pending before the Board, Pinnacle,
its officers, representatives, agents, servants,
employees, attorneys, successors and assigns,
and all persons acting in concert or
participation with it or them, are enjoined and
restrained from:
(g) In any other manner interfering with,
restraining or coercing employees in the
exercise of the rights guaranteed in Section 7
of the NLRA.
IT IS FURTHER ORDERED THAT
Pinnacle take the following affirmative
actions:
(a) Failing and refusing to recognize and
bargain in good faith with 1199 SEIU as the
exclusive
collective
bargaining
representative of employees in the Dietary
Unit 3;
(a) Rescind any and all collective
bargaining agreements with Local 713 as
they relate to the Dietary Unit employees;
(b) Within five (5) days of the issuance
of the Court’s order, mail a copy of this Order
to the homes of all current Pinnacle’s
employees, supervisors, and managers
employed at the Facility, and maintain proofs
of mailing as required by this Order; and
(b) Implementing changes to the terms
and conditions of employment of employees
in the Dietary Unit that are mandatory
subjects for the purposes of collective
bargaining without first providing 1199 SEIU
with notice and the opportunity to bargain
either to an agreement concerning the change
or overall impasse on a collective bargaining
agreement;
(c) Within fourteen (14) days of the
issuance of the Court’s order, file with the
Court, with a copy submitted to the Regional
Director of the Board for Region 2, a sworn
affidavit from a responsible official of
Pinnacle, setting forth with specificity the
manner in which Pinnacle complied and will
continue to comply with the terms of the
decree, including the location of the
documents to be posted under the terms of
this decree.
(c)
Terminating, or causing the
termination of, employees because of their
support for and activities on behalf of 1199
SEIU and to discourage employees from
engaging in these activities;
(d) Unlawfully assisting Local 713 by
ordering the Dietary Unit employees to sign
authorization cards for Local 713 and
threatening employees with discharge, a loss
of benefits, and other reprisals for refusing to
sign authorization cards for Local 713;
IT IS FURTHER ORDERED THAT,
pending the final disposition of the related
matters pending before the Board, Budget, its
officers, representatives, agents, servants,
employees, attorneys, successors and assigns,
and all persons acting in concert or
(e) Unlawfully assisting Local 713 by
deducting dues from the Dietary Unit
15
participation with it or them, are enjoined and
restrained from:
agreement with Local 713 covering the
Nursing and Dietary Unit employees; and
(a) Failing and refusing to recognize and
bargain in good faith with 1199 SEIU as the
exclusive
collective
bargaining
representative of employees in the Nursing
Unit 4;
(h) In any other manner interfering with,
restraining or coercing employees in the
exercise of the rights guaranteed in Section 7
of the NLRA.
IT IS FURTHER ORDERED THAT
Budget take the following affirmative
actions:
(b) Failing and refusing to recognize and
bargain in good faith with 1199 SEIU as the
exclusive
collective
bargaining
representative of employees in the Dietary
Unit;
(a) Rescind any and all collective
bargaining agreements with Local 713 as
they relate to the Nursing and Dietary Unit
employees;
(c) Implementing and/or making changes
to the terms and conditions of employment of
employees in the Nursing and Dietary Units
that are mandatory subjects for the purposes
of collective bargaining without first
providing 1199 SEIU with notice and the
opportunity to bargain either to an agreement
concerning the change or overall impasse on
a collective bargaining agreement;
(b) Within five (5) days of the issuance
of the Court’s order, mail a copy of this Order
to the homes of all current Budget
employees, supervisors, and managers
employed at the Facility, and maintain proofs
of mailing as required by this Order; and
(c) Within fourteen (14) days of the
issuance of the Court’s order, file with the
Court, with a copy submitted to the Regional
Director of the Board for Region 2, a sworn
affidavit from a responsible official of
Budget, setting forth with specificity the
manner in which Budget complied and will
continue to comply with the terms of the
decree, including the location of the
documents to be posted under the terms of
this decree.
(d)
Terminating, or causing the
termination of, employees because of their
support for and activities on behalf of 1199
SEIU and to discourage employees from
engaging in these activities;
(e) Unlawfully assisting Local 713 by
ordering the Nursing and Dietary Unit
employees to sign authorization cards for
Local 713 and threatening employees with
discharge, a loss of benefits, and other
reprisals for refusing to sign authorization
cards for Local 713;
IT IS FURTHER ORDERED THAT,
pending the final disposition of the related
matters pending before the Board, Local 713,
its officers, representatives, agents, servants,
employees, attorneys, successors and assigns,
and all persons acting in concert or
participation with it or them, are enjoined and
restrained from:
(f) Unlawfully assisting Local 713 by
deducting dues from the Nursing and Dietary
Unit employees’ pay and remitting those
dues to Local 713;
(g) Assisting Local 713 by entering into
and/or maintaining a collective bargaining
(a) Entering into and/or maintaining a
collective bargaining agreement with SBM
16
SO ORDERED.
Rehab, Pinnacle, Budget and/or any other
entity purpo1ting to cover employees
employed at the Facility;
"'~~ - ~AN°
--- ~~RICHARD J. SULLIV
United States District Judge
(b) Accepting recognition from SBM
Rehab, Budget and/or Pinnacle for
employees employed at the Facility;
Dated: March 9, 2015
New York, New York
(c) Accepting unlawful dues remittances
from SBM Rehab, Budget and/or Pinnacle
for employees employed at the Facility; and
*
*
*
Petitioner is represented by Julie
Polakoski and Julie Ulmet of the National
Labor Relations Board, Region 2, 26 Federal
Plaza, New York, New York 10278.
(d) In any other manner interfering with,
restraining, or coercing its employees in the
exercise of the rights guaranteed in Section 7
of the NLRA.
Respondent SBM Rehab is represented
by Jeffrey Meyer of Kaufman, Dolowich &
Voluck LLP, 60 Broad Street, New York,
New York 10004. Respondent Budget is
represented by Avrom Vann of Avrom R.
Vann, P.C., 420 Lexington Avenue, New
York, New York 10170.
Counsel for
Respondents Pinnacle and Local 713 have
not filed a notice of appearance.
IT IS FURTHER ORDERED THAT
Local 713 take the following affirmative
actions:
(a)
Rescind any and all collective
bargaining agreements with SBM Rehab,
Pinnacle, Budget, or any other entity
purporting to cover any and all Unit
employees employed at the Facility;
(b) Within five (5) days of the issuance
of the Court' s order, mail a copy of this Order
to the homes of all employees employed at
the Facility and covered by a collective
bargaining agreement between Local 713 and
SBM Rehab, Pinnacle, Budget and/or any
other entity; and
USDSSDNY
DOCUMENT
ELECTRONICALLY FILE:J
DOC#: - - - - - -DATE FILED: ~:2_. oj.\S""
(c) Within fourteen (14) days of the
issuance of the Court' s order, file with the
Court, with a copy submitted to the Regional
Director of the Board for Region 2, a sworn
affidavit from a responsible official of Local
713 , setting forth with specificity the manner
in which Local 713 complied and will
continue to comply with the terms of the
decree, including the location of the
documents to be posted under the terms of
this decree.
17
ENDNOTES
1
The following facts are taken from the Petition (Doc. No. 2. (“Pet.”)), Petitioner’s memorandum of points and
authorities in support of its petition (Doc. No. 3 (“Mem.”)), Budget’s memorandum of law in opposition (Doc. No. 15
(“Budget Opp.”)), Pinnacle’s memorandum of law in opposition (Doc. No. 20 (“Pinnacle Opp.”)), SBM Rehab’s
memorandum of law in opposition (Doc. No. 21 (“SBM Rehab Opp.”)), Petitioner’s reply memorandum of law in
support of its petition (Doc. No. 30 (“Rep.”)), Budget’s memorandum of law in support of its motions (Doc. No. 24
(“Budget Mem.”)), Petitioner’s memorandum of law in opposition to Budget’s motions (Doc. No. 32 (“Fernbach
Opp.”)), Budget’s reply memorandum of law in support of its motion (Doc. No. 34 (“Budget Rep.”)), and the
declarations and exhibits filed in conjunction therewith. In deciding these motions, the Court also considered the
parties’ statements and representations at the hearing on January 28, 2015.
2
The Court adopts the definition of Unit contained in the Petition. (Pet. at 11.)
3
The Court adopts the definition of Dietary Unit contained in the Petition. (Pet. at 12.)
4
The Court adopts the definition of Nursing Unit contained in the Petition. (Pet. at 13.)