Briccetti, J.:
Rhonda P. Ley, Regional Director for Region 3 of the National Labor Relations Board ("Petitioner"), brings this action against respondent Wingate of Dutchess, Inc. ("Respondent"), pursuant to Section 10(j) of the National Labor Relations Act ("NLRA"), seeking a temporary injunction pending the final administrative disposition
Petitioner seeks (i) an interim bargaining order, (ii) interim reinstatement of a terminated union activist, and (iii) an order requiring Respondent to read the Court's order to its employees.
For the reasons set forth below, the petition is GRANTED.
The Court has jurisdiction pursuant to Section 10(j) of the NLRA. 29 U.S.C. § 160(j).
On October 1, 2014, 1199 SEIU United Healthcare Workers East (the "Union") filed a petition to hold an election for union representation at Wingate of Dutchess, a nursing home in Fishkill, New York. On November 10, 2014, the Union filed with the Board an unfair labor practice charge alleging Respondent was engaging in unfair labor practices under Section 8(a)(1) and (3) of the NLRA. An election was held among eligible employees on November 12, 2014, and the Union received 60 votes, with 64 employees voting against the Union. The Union amended its unfair labor practice charge in December 2014, and again in January 2015. In February 2015, the Union filed a new charge alleging Respondent was engaging in unfair labor practices. On March 31, 2015, the General Counsel of the Board consolidated the cases. On April 17, 2015, the General Counsel issued an amended consolidated complaint, and Respondent timely answered.
On May 22, 2015, Petitioner filed a petition for an injunction under Section 10(j) of the NLRA with this Court. (Doc. # 1). Following a conference on May 29, 2015, the Court declined to grant the requested injunctive relief, pending the result of the administrative proceeding before the Board's Administrative Law Judge. (Doc. # 30).
In June 2015, the case was tried before Administrative Law Judge Mark Carissimi ("ALJ"). On November 16, 2015, the ALJ issued a decision ("ALJ Decision") on the allegations of the amended consolidated complaint, largely finding in favor of the Union. On December 2, 2015, this Court held a conference and directed Petitioner to file an amended petition for an injunction under Section 10(j) of the NLRA. (Doc. # 44).
The following facts are taken from the amended petition (Doc. # 47), Petitioner's memorandum of points and authorities in support of its petition (Doc. # 47-2), Respondent's memorandum of law in opposition (Doc. # 48), Petitioner's reply brief in support of its amended petition (Doc. # 52), ALJ Carissimi's November 16, 2015, decision (Doc. # 39-1), and the declarations and exhibits submitted in conjunction therewith.
Respondent's nursing home employs approximately 160 people and provides care for approximately 160 residents.
Respondent's owner, Wingate Healthcare Inc., also owns 18 other nursing facilities. In June 2014, the Union filed a petition for an election on behalf of certified nursing aides ("CNAs") and licensed practical
Clayton Harbby, the administrator of Wingate of Dutchess, was instructed by Wingate Healthcare Inc.'s senior personnel to monitor the presence of union representatives or activity on Respondent's property. During the week of July 7, 2014, Harbby asked some employees at Wingate of Dutchess, including a CNA named Georgann Allen, to go to the Ulster facility to share their experiences at the Dutchess facility and express the view that Wingate of Ulster did not need to unionize.
After the meeting with Harbby, Allen reported Harbby's request to four colleagues. They began discussing certain points of dissatisfaction with Wingate, including their inability to afford health insurance and lack of job security. One employee, Sandra Stewart, asked Allen what they could do about these problems, to which Allen replied that she could contact the Union.
Two days later, Stewart reached out to the Union. Stewart and a Union representative discussed unionizing and the representative asked Stewart to circulate a list to employees to apply for the Union to represent them. Stewart obtained approximately 35 signatures and faxed it to the Union.
At some point during the week after Harbby's meeting with Allen, the director of nursing services, Ann Nelson, approached Allen about whether she would speak at the Ulster facility. Nelson apparently thought Allen had agreed to speak at Ulster, and Allen reiterated she felt the employees at the Dutchess facility "were in the same boat" as the employees at the Ulster facility, and accordingly, she would not speak to them. (ALJ Decision at 7).
On July 14, 2014, Respondent posted a memo from Nelson to the nursing staff indicating it would introduce bonuses for perfect attendance for the period from July 18, 2014, through September 18, 2014.
On July 23, 2014, Harbby and Nelson held a series of meetings with employees. Harbby told employees that Wingate at Dutchess did not need a union and predicted there would be layoffs and cutbacks due to the union election at the Ulster facility. Harbby informed the employees he would "stay at [a] hotel and sleep night and day to make sure that there was no union coming into his facility." (ALJ Decision at 8).
On July 25, 2014, a Union representative met with Allen and Stewart to discuss the organizing process. The Union representative gave them authorization cards and explained that if a majority of employees signed the cards in support of the Union, the Union would be able to bargain a contract with Respondent. Stewart then began soliciting employees to sign the cards in support of the Union.
In late July 2014, Nelson and Harbby instructed Stewart not to conduct union activities while employees were engaged in patient care. Nelson had received reports that Stewart was soliciting authorization card signatures while employees were in patients' rooms or passing out medications. Harbby told Stewart she should educate herself to know what she was getting into.
Beginning on August 8 and continuing through the November 12, 2014, election, union representatives and employee supporters occasionally gathered at a parking lot of a property adjacent to the Dutchess facility during shift changes to demonstrate support for the union. On August 8, 13, and 20, managers or supervisors confronted the employees about accessing the facility's property, requested the employees move, and when they did not, called the police. Each time the employees either left or complied with the police officers' instructions.
By August 13, the Union had obtained authorization cards from 70 of the 139 eligible employee voters. By the end of August, the Union had obtained authorization cards from 87 of the 139 eligible employee voters.
On August 22, 2014, Respondent posted a memo from the owner and president of Wingate Healthcare Inc. to employees at the Dutchess facility. The memo announced a 2% wage increase for employees in good standing who had been hired prior to January 1, 2014. Prior to this announcement, Respondent's practice was to grant wage increases to employees on their anniversary dates, subject to a favorable review. The wage increase was implemented on September 1, 2014.
By October 11, the Union had obtained 96 signed authorization cards out of a total of 139 eligible employees.
On or about November 6, 2014, six days before the election, Respondent posted a memo entitled "Straight Talk." The memo posed questions to employees about the benefits they received as non-union employees. For example, the memo asked, "[a]re you willing to trade away your Wingate union free flexibility for representation by 1199?" (ALJ Decision at 38).
On November 11, the day before the election, Respondent sent a text message to all employees, stating "Free jeans day tomorrow Wednesday 11/12 if you wear your Wingate proud shirt!" (ALJ Decision at 43).
The election was held on November 12, 2014 and the employees voted against the Union, 64 to 60.
Stewart was a CNA at Wingate of Dutchess beginning in 2009. Her annual evaluations were within the outstanding or excellent ranges, although she had been disciplined with warnings twice over her five years.
As described above, Stewart initially contacted the Union in mid-July 2014, met with Union representatives about engaging employee support for the Union, and was the principal advocate for the Union. Of the 97 signed authorization cards, she solicited 56 employee signatures. Respondent became aware of Stewart's support for the Union as early as July 29, 2014, when Nelson and Harbby spoke to her about soliciting authorization cards during working hours.
On September 20, 2014, the daughter of one of the facility's residents complained to Nelson that Stewart had refused to assist her father use the toilet and left the resident wet with urine. Nelson investigated the incident, including soliciting written statements from the resident's daughter and the other staff members assigned to the resident's unit during the shift. Stewart spoke to Nelson and denied that she failed to assist the resident. Stewart refused to make a written statement because she believed Nelson was harassing her for
On October 3, 2014, the resident's daughter brought two new complaints about the care her father was receiving. First, the daughter complained that her father had told her an aide had called her father "the great reporter." Second, the daughter complained her father's face had a lot of nicks from being shaved.
That same day, Nelson began investigating the incident by speaking with the resident and her daughter. The resident could not identify Stewart by name but described the aide in question as Puerto Rican.
Later that day, Nelson submitted an incident report to the New York State Department of Health and identified Stewart as the employee under investigation for abusing the resident. Nelson removed Stewart from Respondent's schedule pending the investigation.
Stewart gave written and verbal statements indicating she had not referred to the resident as the "great reporter" or "news reporter," and that, although she had shaved the resident that day, he had not complained.
Based on her investigation, Nelson concluded Stewart did refer to the resident as the "great reporter" while administering care to him, directly as a result of the toilet incident on September 20. Nelson determined Stewart's actions warranted discharge. In the Termination Summary Report, the reason for the discharge stated, "Sandra failed to provide care to the resident and when this was reported she retaliated and called a resident `The Reporter' which is reprisal." (ALJ Decision at 56). The Vice President of Human Resources approved Nelson's recommendation to terminate Stewart and on October 17, Harbby informed Stewart she was terminated for resident abuse.
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 [the 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).
When considering whether a petitioner has demonstrated reasonable cause to believe unfair labor practices have been committed, the Court need not "make a final determination whether the conduct in question constitutes an unfair labor practice."
The Court gives "significant deference" to the Board's Regional Director's determinations.
When an administrative law judge has ruled on a petition, the judge's findings may serve as a point of reference for the district court.
Injunctive relief is "just and proper" under Section 10(j) "when it is necessary to prevent irreparable harm or to preserve the status quo."
Preservation of the status quo serves "to protect employees' statutory collective bargaining rights."
In evaluating 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."
Petitioner has alleged Respondent violated Section 8(a)(1) and Section 8(a)(3) of the NLRA. To succeed on the first prong of the Section 10(j) inquiry, Petitioner must demonstrate there is reasonable
Section 8(a)(1) of the NLRA provides that "[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the right" to "self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C. §§ 157, 158(a)(1).
Respondent argues there is no reasonable cause to believe it engaged in unfair labor practices in violation of Section 8(a)(1).
The Court disagrees.
Based on the above facts, the Court finds there is reasonable cause to believe Respondent violated Section 8(a)(1) of the NLRA because it, through Harbby, Nelson, or other supervisors, (i) placed employees in a position of declaring their union sympathies; (ii) coercively questioned certain employees about their support for the union; (iii) implicitly threatened reprisal for engaging in union activity; (iv) excluded employees supporting the union from property from which Respondent did not have a right to exclude supporters; (v) unlawfully surveilled employees supporting the union; and (vi) pressured employees to demonstrate their support for or rejection of the union in an observable way.
Section 8(a)(3) of the NLRA provides that "[i]t shall be an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment[,] to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3).
Respondent argues there is no reasonable cause to believe it engaged in unfair labor practices in violation of Section 8(a)(3) because its actions were made pursuant to established practices and not due to the pending union campaign.
The Court disagrees.
The Court finds there is reasonable cause to believe Respondent violated Section 8(a)(3) of the NLRA because, as set forth above, it (i) announced and implemented a bonus attendance program; (ii) changed the payroll period from biweekly to weekly in response to employee dissatisfaction; (iii) announced and implemented a wage increase; and (iv) suspended and then discharged Sandra Stewart. The foregoing acts occurred in the weeks leading
Having found reasonable cause to believe Respondent committed unfair labor practices in violation of the NLRA, the Court now turns to whether the relief Petitioner seeks is just and proper. Petitioner asks the Court to enter an interim bargaining order and offer interim reinstatement to Sandra Stewart.
Although a bargaining order is a serious measure, the Court finds an interim bargaining order is necessary to restore the status quo before Respondent engaged in its unfair labor practices.
When, as here, the Regional Director has shown the union had a "clear majority" of support "based on authorization cards," and then the employer engaged in "egregious and coercive unfair labor practices as to make a fair election virtually impossible, the district court
Two of Respondent's unfair labor practices are so-called "hallmark violations" — the granting of benefits to employees, and the demotion or discharge of a union supporter.
Respondent argues an interim bargaining order is not just and proper because it would alter the status quo by imposing the Union despite the election results, and because mitigating circumstances render an interim bargaining order inappropriate.
The Court is not persuaded.
First, an interim bargaining order would not alter the status quo, as Respondent contends, because the loss of support for a union
Second, Respondent's argument that mitigating circumstances, such as employee turnover and the passage of time, undermine the appropriateness an interim bargaining order is unavailing.
Respondent cites several cases in which courts analyzed employee turnover as a mitigating circumstance in deciding against issuing a bargaining order. Applying those cases here, Respondent argues an interim bargaining order would not be just and proper because 44 of the 139 employees eligible to vote in the election no longer work at Wingate of Dutchess. However, Respondent has cited no support for the proposition that employee turnover is a mitigating circumstance in deciding whether to issue an
Accordingly, because the Court is unaware of any valid support for the proposition that it must consider employee turnover in issuing an interim bargaining order, the turnover at Wingate of Dutchess does not undermine the justness or propriety of the relief sought here.
As for the passage of time, while this could be a valid mitigating circumstance, it is insufficient, without more, to justify rejecting a Section 10(j) petition.
Here, Respondent has not shown so much time has passed since the violations occurred that an interim bargaining order requested by Petitioner could not effectively restore the status quo. While the seventeen months that have passed since the election may be longer than desirable, the time required for the Regional Director's investigation and the ALJ's deliberation were not unreasonable. The Regional Director's investigation into the unfair labor practices occurred over several months between November 2014 and the filing of the petition in May 2015. Then, Respondent itself urged the Court to defer ruling on the injunction until after the ALJ's decision. Next, the ALJ took five months between June and November 2015 to try the case and issue his decision. Even assuming these delays are unreasonable and caused by Petitioner — which they are clearly not — it would be inappropriate to punish Respondent's employees for such delays.
Thus, while the passage of time in this case may be longer than desirable, because Respondent has not made the requisite showing how the delay undermines the effectiveness of the injunctive relief, an interim bargaining order is just and proper.
Petitioner also seeks an order directing Respondent to offer reinstatement to the discharged employee, Sandra Stewart. Interim reinstatement for unlawfully discharged employees is often granted under Section 10(j) relief to restore the status quo and to prevent an "adverse impact on employee interest in unionization."
Therefore, an offer of reinstatement to Ms. Stewart is necessary to reestablish the status quo as it existed before the unfair labor practices occurred and "reassure" Respondent's employees that their "rights are not illusory."
For the reasons stated above, the petition for a temporary injunction pursuant to Section 10(j) of the NLRA is GRANTED. The Court finds there is reasonable cause to believe Respondent engaged in serious unfair labor practices in violations of Sections 8(a)(1) and (3) of the NLRA, and that injunctive relief is just and proper.
Accordingly, it is hereby ORDERED that:
The petition having been granted, the Clerk is instructed to close this case.
SO ORDERED.
However, the Court follows the law of
