Alaris Health at the Atrium

National Labor Relations Board - Board Decisions

Sep 26, 2019

368 NLRB No. 82 (N.L.R.B. 2019)

368 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Alaris Health at the Atrium and 1199 SEIU United
Healthcare Workers East. Case 22–CA–206004
September 26, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND EMANUEL
The General Counsel seeks a default judgment in this
case pursuant to the terms of an informal settlement
agreement. Upon a charge filed by 1199 SEIU United
Healthcare Workers East (the Union) on September 12,
2017, the Regional Director for Region 22 issued a com-
plaint on December 29, 2017, against Alaris Health at the
Atrium (the Respondent), alleging that it violated Section
8(a)(1) of the National Labor Relations Act (the Act) by
stating that it would not issue promised new uniforms to
the employees because of the Union and violated Section
8(a)(5) and (1) of the Act by unilaterally changing terms
and conditions of employment of unit employees by
promulgating a new employee handbook without provid-
ing the Union notice and an opportunity to bargain re-
garding the changes and their effects. On January 12,
2018,1 the Respondent filed its answer to the complaint.
On March 19, the General Counsel moved to amend the
complaint.2
Subsequently, the parties executed a bilateral informal
settlement agreement and Notice to Employees (settle-
ment agreement), which Administrative Law Judge Lau-
ren Esposito approved on March 27.3 Pursuant to the
terms of the settlement agreement, the Respondent
agreed to post a Notice to Employees at its facility in
Jersey City, New Jersey. It also agreed to comply with
all the terms and provisions of the Notice to Employees,
which included, upon the Union’s request, rescinding
certain provisions of the revised employee handbook, as
well as the acknowledgment forms concerning the hand-
book that had been signed by unit employees, and re-
moving all references to, and copies of, the forms from
its records and notifying the employees that it had done
so. The Respondent also agreed to pay unit employees
for lost wages and benefits as a result of these changes,
and to rescind any discipline imposed on unit employees
because of the changes to their terms and conditions of

1 All dates are 2018 unless otherwise indicated.
2 The motion sought to correct typographical errors and to include
additional provisions in the new employee handbook.
3 The judge granted the General Counsel’s motion to amend the
complaint on the same date.
employment. Finally, the Respondent agreed not to re-
fuse to bargain in good faith with the Union and not to
refuse to meet and bargain with it regarding changes in
wages, hours, and working conditions before putting
them into effect. The settlement agreement also contains
the following noncompliance provision:
The Charged Party agrees that in case of non-
compliance with any of the terms of this Settlement
Agreement by the Charged Party, and after 14 days’
notice from the Regional Director of the National La-
bor Relations Board of such non-compliance without
remedy by the Charged Party, the Regional Director
will reissue the complaint previously issued on De-
cember 29, 2017 in the instant case. Thereafter, the
General Counsel may file a motion for default judg-
ment with the Board on the allegations of the com-
plaint. The Charged Party understands and agrees that
the allegations of the aforementioned complaint will be
deemed admitted and its Answer to such complaint will
be considered withdrawn. The only issue that may be
raised before the Board is whether the Charged Party
defaulted on the terms of this Settlement Agreement.
The Board may then, without necessity of trial or any
other proceeding, find all allegations of the complaint
to be true and make findings of fact and conclusions of
law consistent with those allegations adverse to the
Charged Party on all issues raised by the pleadings. The
Board may then issue an order providing a full remedy
for the violations found as is appropriate to remedy
such violations. The parties further agree that a U.S.
Court of Appeals Judgment may be entered enforcing
the Board order ex parte, after service or attempted ser-
vice upon Charged Party/Respondent at the last address
provided to the General Counsel.
By email dated April 25, the Union requested that the
Respondent rescind certain handbook provisions and any
signed employee acknowledgment forms, expunge cop-
ies of the forms and other references to them from its
records, and inform the unit employees that it had done
so. By emails dated April 25, May 2 and 18, the Union
requested that the Respondent provide it with copies of
all disciplines issued to unit employees since June 1,
2017, and provide it with specific information necessary
to investigate the Respondent’s backpay obligation pur-
suant to the remedial provisions of the settlement agree-
ment. Since about April 25 and May 2, the Respondent
has failed and refused to comply fully with the settlement
agreement by failing and refusing to provide the request-
ed discipline and backpay information.
By letter dated May 2, transmitted by email, the Re-
gion’s compliance officer notified the Respondent of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
remedial actions that it was required to take in order to
comply with the settlement agreement. The Respondent
returned its Certification of Compliance Part Two form,
dated July 11, with all sections either unmarked or
marked as “N/A [not applicable].” On August 17, the
Region’s compliance officer, by email, notified the Re-
spondent that its Certification of Compliance Part Two
form was deficient and required the Respondent to cor-
rect the form by August 24 to reflect the status of the
Respondent’s compliance with the settlement agreement.
The Respondent did not respond to this notification. By
email dated August 24, the Region’s compliance officer
reiterated the instruction in her August 17 email. The
August 24 email further instructed the Respondent to
provide documentation establishing that employee Julina
Straker had been paid holiday pay owed or documenta-
tion showing that no pay was owed to that employee.
The Region’s compliance officer also advised the Re-
spondent that absent full compliance with the settlement
agreement by September 7, the Regional Director would
revoke the settlement agreement and reissue the com-
plaint. The Respondent did not respond to the August 24
email. Pursuant to the performance provision set forth
above, on May 6, 2019, the General Counsel, by the Re-
gional Director, reissued the complaint (“the reissued
complaint”) and vacated the settlement agreement.
On May 8, 2019, the General Counsel filed a Motion
for Default Judgment with the Board. On May 14, 2019,
the Board issued an Order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent did not file a
response. The allegations in the motion are therefore
undisputed.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Judgment
According to the uncontroverted allegations in the mo-
tion for default judgment, the Respondent has failed to
comply with the terms of the settlement agreement.
Consequently, pursuant to the noncompliance provision
of the settlement agreement set forth above, we find that
the Respondent’s answer to the complaint has been with-
drawn and that all of the allegations in the reissued com-
plaint are true.4 Accordingly, we grant the General
Counsel’s Motion for Default Judgment.
On the entire record, the Board makes the following

4 See U-Bee, Ltd., 315 NLRB 667, 668 (1994).
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Jersey City, New
Jersey (the Jersey City facility), has been engaged in the
operation of a nursing home providing long-term resi-
dential care and related services.
In conducting its operations annually, the Respondent
derived annual gross revenues in excess of $100,000.
The Respondent, in conducting its business operations
annually, purchased and received at its Jersey City facili-
ty goods valued in excess of $5000 directly from points
outside of the State of New Jersey.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and is a health care institution within the
meaning of Section 2(14) of the Act. We find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. At all material times, David F. Jasinski has held the
position of the Respondent’s chief negotiator and has
been an agent of the Respondent within the meaning of
Section 2(13) of the Act.
2. At all material times, Marianne Alfano has held the
position of the Respondent’s administrator and has been
a supervisor of the Respondent within the meaning of
Section 2(11) and an agent of the Respondent within the
meaning of Section 2(13) of the Act.
3. The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All full-time, regular part-time and per-diem certified
medical assistants/aides and personal care attendants
employed by the Respondent at its 330 Ninth Street,
Jersey City, New Jersey facility, but excluding all other
employees including office clerical employees, mainte-
nance employees, professional employees, guards and
supervisors as defined in the Act.
(a) On June 6, 2016, the Board certified the Union as
the exclusive collective-bargaining representative of the
Respondent’s unit employees.
(b) At all times since June 6, 2016, based on Section
9(a) of the Act, the Union has been the exclusive collec-
tive-bargaining representative of the Respondent’s unit
employees.
4. About February 2017, by Marianne Alfano, in the
employee break room at the Respondent’s Jersey City
ALARIS HEALTH AT THE ATRIUM 3
facility, the Respondent promised employees that it
would issue new uniforms to employees.
5. About February 2017, by Marianne Alfano, in the
hallway at the Respondent’s Jersey City facility, the Re-
spondent informed employees that it would not issue new
uniforms to employee because of the Union.
6. The Respondent engaged in the conduct described
above in paragraph 5 in order to discourage employee
support for the Union.
7. Since about 2013, the Respondent has maintained
the following policies and or work rules in its employee
handbook.
(a) If you must be late or absent from work, you must
verbally notify your supervisor, department head and/or
Administrator three (3) hours prior to the star[t] of your
shift.
(b) Upon reasonable request, at the Company’s discre-
tion, employees may be allowed inspect their personnel
files. [sic]
(c) If an employee works the holiday, that employee
must, within 30 days take a day off with pay in lieu the
holiday time. [sic]
(d) 50 percent of your annual accrued unused vacation
may be banked and will be available in subsequent
years.
(e) Employees may bank up to 25 sick days for use for
hospitalization (Employer may require proof of hospi-
talization).
8. About July 2017, the Respondent unilaterally
changed terms and conditions of employment of the
unit employees by promulgating a new employee
handbook, containing the following provisions:
(a) If you have a change in any of the following items,
please be sure to immediately notify the Administra-
tion.
• Updates on certifications, renewals or licenses
(b) Certain positions will require successful completion
of competency testing, which may be based on obser-
vations of your work, for you to be qualified to hold
that position.
(c) No vacation, sick days, or personal days can be used
during the resignation notice period.
(d) If you must be late or absent from work, you must
notify your supervisor, department head and/or Admin-
istrator generally more than two (2) hours prior to the
start of your shift.
(e) Violence in the Work Place (Policy, Purpose, Pro-
cedure).
(f) If an employee works the holiday, that employee
must, within thirty (30) days of that holiday, take a day
off with pay in lieu [of] the holiday time or request
within thirty (30) days to be paid for the holiday, which
may be granted at the Employer's discretion.
(g) Compliance Program describing the “Facilities pol-
icies and procedures for detecting and preventing fraud,
waste and abuse and its Code of Conduct.[”]
(h) All vacation time should be taken during the current
vacation year and may only be carried over from one
year to another in accordance with the attached Benefit
Rider.
(i) You can carry the unused sick time up to a maxi-
mum of forty (40) hours to the following year.
9. About July 2017, the Respondent unilaterally
changed terms and conditions of employment of the unit
employees by promulgating the employee handbook de-
scribed above in paragraphs 8(a) through (i).
10. The subjects set forth above in paragraphs 8(a)
through (i) relate to wages, hours, and other terms and
conditions of employment of the unit employees and are
mandatory subjects for the purposes of collective bar-
gaining.5
11. The Respondent engaged in the conduct described
above in paragraphs 8 and 9 without prior notice to the
Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct
and the effects of this conduct.
CONCLUSIONS OF LAW
1. By the conduct described above in paragraph 5, the
Respondent has been interfering with, restraining, and
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act in violation of Section
8(a)(1) of the Act.
2. By the conduct described above in paragraphs 8, 9,
and 11, the Respondent has been failing and refusing to
bargain collectively and in good faith with the exclusive
collective-bargaining representative of its employees in
violation of Section 8(a)(5) and (1) of the Act.
3. The unfair labor practices of the Respondent de-
scribed above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to comply
with its obligations under the settlement agreement ap-
proved by the judge on March 27, 2018. Accordingly,

5 The reissued complaint inadvertently misstates the paragraph
numbers containing the allegations in this and the preceding paragraph.
We correct the errors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
we shall order the Respondent to cease and desist from
failing and refusing to bargain on request with the Union
as the exclusive collective-bargaining representative of
unit employees; from refusing to meet and bargain in
good faith with the Union regarding any proposed
changes in wages, hours, and terms and conditions of
employment before putting such changes into effect; and
from blaming the Union for the Respondent’s decision
not to provide new uniforms to bargaining unit employ-
ees. We shall also require the Respondent to take certain
affirmative action designed to effectuate the policies of
the Act, as set forth in the settlement agreement. Specif-
ically, we shall order the Respondent to (1) post and
comply with the notice as provided by the Regional Of-
fice in English and any additional language found appro-
priate by the Regional Director; (2) upon the Union’s
request, rescind the provisions of the employee handbook
issued about July 2017, as set forth in the rider attached
to the agreement and the notice herein; (3) upon the Un-
ion’s request, rescind any acknowledgement forms relat-
ed to that employee handbook that were signed by unit
employees, expunge all references and copies of the
acknowledgement forms from its files and records, and
inform the unit employees that this has been done; (4)
pay employees for the wages and benefits lost, if any,
and rescind discipline, if any, because of the handbook
changes to terms and conditions of employment made
without bargaining with the Union; and (5) provide rec-
ords necessary to analyze the amount of backpay due.
In limiting our affirmative remedies to those enumer-
ated above, we are mindful that the General Counsel is
empowered under the default provision of the settlement
agreement to seek “a full remedy for the violations found
as is appropriate to remedy such violations.” The Gen-
eral Counsel, however, requested in his motion that the
Board “requir[e] Respondent to fulfill all of its undertak-
ings in the March 27, 2018 Settlement Agreement.” In
the particular circumstances of this case, we construe the
General Counsel’s motion as a request to enforce the
terms of the settlement agreement, which provided for
the specific remedial actions as set forth above and is
consistent with the status quo remedy sought in the reis-
sued complaint.6 See, e.g., Perkins Management Ser-
vices, 365 NLRB No. 90, slip op. at 4 fn. 3 (2017).

6 Although the settlement agreement does not explicitly state that
the Respondent must provide employee payroll records, the General
Counsel stated in his motion that the Respondent failed to provide
specific information necessary to investigate the Respondent’s backpay
obligation pursuant to the remedial terms of the settlement agreement.
Here, the payroll records are necessary to enforce the unmet make-
whole provision of the settlement agreement. Accordingly, the Order
includes the Board’s standard language requiring the Respondent to
provide such records.
ORDER
The National Labor Relations Board orders that the
Respondent, Alaris Health at the Atrium, Jersey City,
New Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain in good faith with 1199 SEIU
United Healthcare Workers East (“the Union”) as the
exclusive collective-bargaining representative of the em-
ployees in the following unit:
All full-time, regular part-time and per-diem certified
medical assistants/aides and personal care attendants
employed by the Respondent at its 330 Ninth Street,
Jersey City, New Jersey facility, but excluding all other
employees including office clerical employees, mainte-
nance employees, professional employees, guards and
supervisors as defined in the Act.
(b) Refusing to meet and bargain in good faith with
the Union regarding any proposed changes in wages,
hours, and working conditions before putting such
changes into effect.
(c) Blaming the Union for the Respondent’s decision
to not provide new uniforms to our unit employees.
(d) In any like or related manner interfering with the
employees’ rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) If requested by the Union, rescind those provisions
of the employee handbook that were issued about July
2017, to unit employees, as set forth in the rider attached
to the settlement agreement; if requested, rescind any
acknowledgement forms related to that employee hand-
book that were signed by unit employees and expunge all
references and copies of the acknowledgement forms
from our files and records; and if requested, inform the
unit employees that it has done all of the above.
(b) Pay unit employees for any wages and other bene-
fits they lost, if any, and rescind discipline, if any, be-
cause of the handbook changes to terms and conditions
of employment that were made without bargaining with
the Union.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
ALARIS HEALTH AT THE ATRIUM 5
(d) Within 14 days after service by the Region, post at
its facility in Jersey City, New Jersey, copies of the at-
tached notice marked “Appendix,” in English and in ad-
ditional languages if the Regional Director decided that it
is appropriate. Copies of the notice, on forms provided
by the Regional Director for Region 22, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 22 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. September 26, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran Member
______________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything to prevent you from exercis-
ing the above rights.
WE WILL NOT, upon request, refuse to bargain in good
faith with 1199 SEIU United Healthcare Workers East
(the Union) as the exclusive collective-bargaining repre-
sentative of our employees in the following unit:
All full-time, regular part-time and per-diem certified
medical assistants/aides and personal care attendants
employed by the Respondent at its 330 Ninth Street,
Jersey City, New Jersey facility, but excluding all other
employees including office clerical employees, mainte-
nance employees, professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT refuse to meet and bargain in good faith
with your Union regarding any proposed changes in
wages, hours, and working conditions before putting
such changes into effect.
WE WILL NOT blame the Union for our decision to not
provide new uniforms to our unit employees.
WE WILL NOT in any like or related manner interfere
with your rights under Section 7 of the Act.
WE WILL, if requested by the Union, rescind those pro-
visions of the employee handbook that were issued in
about July 2017, to our unit employees, as set forth in the
attached rider; if requested, rescind any acknowledgment
forms related to that employee handbook that were
signed by unit employees and expunge all references and
copies of the acknowledgment forms from our files and
record; and if requested, inform the unit employees that
we have done all of the above.
WE WILL pay you for the wages and other benefits you
lost, if any, and rescind discipline, if any, because of the
handbook changes to terms and conditions of employ-
ment that we made without bargaining with the Union.
ALARIS HEALTH AT THE ATRIUM
The Board’s decision can be found at
www.nlrb.gov/case/22-CA-206004 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
RIDER
REINSTATE THE FOLLOWING PROVISION:
 Upon reasonable request, at the Company’s dis-
cretion, employees may be allowed inspect their
personnel files. (sic).
DELETE THE FOLLOWING PROVISIONS:
 Certain positions will require successful com-
pletion of competency testing, which may be
based on observations of your work, for you to
be qualified to hold that position.
 No vacation, sick days, or personal days can be
used during the resignation notice period.
 If you must be late or absent from work, you
must notify your supervisor, department head
and/or Administrator generally more than two
(2) hours prior to the start of your shift.
 Violence in the Work Place (Policy, Purpose,
Procedure).
 If an employee works the holiday, that employ-
ee must, within thirty (30) days `of that holiday,
take a day off with pay in lieu [of] the holiday
time or request within thirty (30) days to be paid
for the holiday, which may be granted at the
Employer’s discretion.
 Compliance Program describing the “Facility
policies and procedures for detecting fraud,
waste and abuse and its Code of Conduct.”
 You can carry the unused sick time up to a max-
imum of forty (40) hours to the following year.