Cogburn Healthcare Center

National Labor Relations Board - Board Decisions

Jun 21, 2004

342 N.L.R.B. 98 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 11
98
Cogburn Healthcare Center, Inc. and United Food
Commercial Workers Union, Local 1657, AFL–
CIO

Toni M. Hill and Medforce, A Division of MJP, Inc.
Party in Interest. Cases 15–CA–13874, 15–CA–
13885, 15–CA–13949, 15–CA–13974, 15–CA–
14029, 15–CA–14069–1, 15–CA–14069–2, and
15–RC–7988
June 21, 2004
ORDER DENYING MOTION
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On September 27, 2001, the National Labor Relations
Board issued a Decision and Order in this proceeding1
finding, inter alia, that a Gissel2 bargaining order was
appropriate to remedy the Respondent’s widespread un-
fair labor practice violations.
Thereafter, on November 2, 2001, the Respondent
timely filed a request to reopen the record and for recon-
sideration (motion).3 The Respondent, in its motion,
argues that changes in management and composition of
the bargaining unit, as well as the passage of time, make
the Board’s Gissel order unnecessary and unenforceable.
The Respondent urges the Board to reopen the record
and reconsider its decision in this case. The General
Counsel filed an opposition to the Respondent’s motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having duly considered the matter, we deny the Re-
spondent’s request to reopen the record and for reconsid-
eration as lacking in merit for the reasons stated below.
In its earlier decision, the Board found that the Re-
spondent engaged in widespread 8(a)(1) violations, vio-
lated Section 8(a)(3) by discharging five employees, and
violated Section 8(a)(3) and (4) by discharging another
employee, and that the Respondent’s unfair labor prac-
tices warranted the issuance of a bargaining order. Re-
garding the judge’s recommendation of a bargaining or-
der, the Board specifically concluded that the Respon-
dent’s serious unfair labor practices had a direct impact
on a significant portion of the approximately 135 em-
ployees in the bargaining unit. The Board noted that the
Respondent did not claim that a Gissel order was unwar-
ranted because of either passage of time or intervening
changed circumstances.
The Respondent asserts in its motion that a Gissel bar-
gaining order is not appropriate in this case because more

1 335 NLRB 1397 (2001).
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
3 Although the Board initially rejected the Respondent’s request to
reopen as untimely, the Board reconsidered that determination and
accepted Respondent’s submission.
than 5 years passed from the July 1996 Board election
among the unit employees and the Board’s 2001 decision
in this case, no other unfair labor practice charges have
been filed against the Respondent since the complaint
issued, and there has been extensive turnover among
management and the unit employees. Regarding em-
ployee turnover, the Respondent avers that the bargain-
ing unit presently consists of 169 employees and that
only 44 percent of them were employed during the Un-
ion’s 1996 organizing campaign. The Respondent con-
tends that of the 82 employees who signed authorization
cards supporting the Union’s claim of majority status
only 25 card signers remain in its employ. Further, the
Respondent asserts that Co-owner Steve Roberts, to
whom the Board attributed at least nine violations, is
deceased; that former Administrator Suzanne Hughes,
whom the Board found committed five violations, no
longer works for the Respondent; that Supervisor Joan
Branning, to whom the Board attributed six violations,
has left the Respondent’s employment; and that Dietary
Manager Sonya O’Shea recently returned to the Respon-
dent after an absence of more than 2 years during which
she worked for a unionized employer and had no unfair
labor practice charges or grievances filed against her.
The Respondent claims that: “[I]t is incredible that the
Board would expect an employer to argue that a Gissel
order was not warranted because of passage of time”
before the Board’s bargaining order even issued. The
Respondent further asserts, citing, e.g., Flamingo Hilton-
Laughlin v. NLRB, 148 F.3d 1166, 1171 (D.C. Cir.
1998); Charlotte Amphitheater Corp. v. NLRB, 82 F.3d
1074, 1078 (D.C. Cir. 1996), that such a remedy, in any
event, is unenforceable in the circuit courts due to the
passage of time and the employee and management turn-
over that has occurred.
1. We conclude that the Respondent’s motion is defi-
cient because it fails to state, as required by Section
102.48(d)(1) of the Board’s Rules and Regulations, “why
[the evidence] was not presented previously.” Although
the Respondent claims that evidence of posthearing em-
ployee and management turnover, as well as the absence
of any new unfair labor practice charges filed against it,
demonstrate that a bargaining order is no longer war-
ranted in this case, the Respondent has failed to state
why it neglected to proffer this evidence until after the
Board issued its decision. The Respondent’s explanation
that “Cogburn cannot be expected to have presented evi-
dence of substantial employee turnover and management
changes which did not exist when this matter initially
was presented to the Board” begs the question. The
judge’s decision, including a recommended bargaining
order, issued on June 4, 1998, and the Board’s Decision
COGBURN HEALTHCARE CENTER 99
and Order issued on September 27, 2001. The Respon-
dent has failed to show that some or all of this evidence it
now relies on was not available during the period that the
case was pending before the Board on exceptions. In
fact, the only changed circumstance for which the Re-
spondent provides a date—the replacement of Suzanne
Hughes as administrator by Michelle Newt—took place
in 1998. Thus, the Respondent has made no effort to
show that it “promptly” moved to reopen the record, as
required by Section 102.48(d)(1) of the Board’s Rules.
Accordingly, we find that the Respondent’s motion was
untimely made.
In reaching this conclusion, we stress that the Court of
Appeals for the District of Columbia Circuit made clear
in Charlotte Amphitheater Corp.,4 that the burden is on a
respondent to bring to the Board’s attention any evidence
of changed circumstances that would render a Gissel
order inappropriate. Although the court found that the
employer’s motion was timely because it was filed “with
reasonable promptness following the issuance of the
ALJ’s recommendation of a bargaining order,” the court
stated that “the Board has no affirmative duty to inquire
whether employee turnover or the passage of time has
attenuated the effects of earlier unfair labor practices.”5
Furthermore, the Fifth Circuit in NLRB v. U.S.A. Poly-
mer Corp.,6 in approving a bargaining order based on
unfair labor practices that were about 7 years old, criti-
cized the employer there for waiting until the Board’s
decision providing for this remedy issued before it at-
tempted to introduce evidence of changed circum-
stances.7
2. Section 102.48(d)(1) of the Board’s Rules and
Regulations further provides that a motion to reopen the
record must state why the additional evidence, if adduced
and credited, “would require a different result.” Al-
though the Respondent has recited changed circum-
stances as grounds for rescinding the Gissel order, the
Board’s established policy is to assess the propriety of a
bargaining order as of the time that the respondent com-
mitted the violations.8 We therefore conclude that the
Respondent’s motion does not comply with the Board’s
Rules.
Furthermore, regarding the Respondent’s assertion of
management turnover, we note that the Respondent’s

4 82 F.3d at 1080.
5 Id.
6 272 F.3d 289, 296 (2001), cert. denied 536 U.S. 939 (2002).
7 See also Dunkin’ Donuts Mid-Atlantic Distribution Center, 363
F.3d 437, 441 (D.C. Cir. 2004) (court noted that employer did not move
to reopen record to place before Board evidence of changes in man-
agement that occurred 21 months before Board’s order).
8 See, e.g., Salvation Army Residence, 293 NLRB 944, 945 (1989),
enfd. mem. 923 F.2d 846 (2d Cir. 1990).
chief financial officer, Prentice Smith, was also serving
as the acting administrator at the Cogburn facility when
the Respondent filed its motion on November 2, 2001.
The Board found in the underlying decision that Smith
violated Section 8(a)(1) of the Act by interrogating an
employee and by telling employees during a mock bar-
gaining session that the Respondent did not have to bar-
gain in good faith. Further, the Respondent unlawfully
discharged employee Toni Hill the day after she pro-
tested that Smith was not bargaining in good faith during
the mock bargaining session and again caused her unlaw-
ful discharge when she later went to work at another of
its facilities while employed by an employment agency
providing temporary employees. The Respondent also
avers that it has recently rehired Dietary Manager Sonya
O’Shea who had been employed by another health care
provider for more than 2 years. In the underlying case,
O’Shea violated the Act by interrogating three employ-
ees and by threatening that the Respondent would sell the
facility and that it would not rehire any striking employ-
ees. Thus, even considering the Respondent’s changed
circumstances, the present hierarchy includes individuals
who have been found to have violated the Act. We also
note that the Respondent does not contend that there has
been any significant change in the family ownership
group, which ultimately directs this health care opera-
tion, other than the death of Steve Roberts.9
3. We further conclude, contrary to the Respondent
and our dissenting colleague, that passage of time does
not render a bargaining order inappropriate because, as
the Board stated in its earlier decision:

The passage of time between the Union’s election cam-
paign and our decision today, though regrettable, does
not detract from the necessity for restoring the status
quo ante regarding the employees’ desires for union
representation that the Respondent dissipated through
unfair labor practices.

335 NLRB at 1401.
We therefore conclude that the additional evidence the
Respondent seeks to introduce in this case does not re-
quire a different result.
4. Finally, in its underlying decision, the Board pro-
vided an extensive analysis of the inadequacy of tradi-
tional remedies. The Board analyzed the seriousness of
the unfair labor practices, their widespread impact

9 Respondent’s claim of employee turnover also has no merit. See
Dunkin’ Donuts Mid-Atlantic Distribution Center, supra at fn. 7 (court
stressed that, despite turnover, “a core” of employees remained who
had experienced employer’s unlawful conduct). Even accepting the
Respondent’s numerical assertions, a core of the original work force
remains.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
throughout the bargaining unit, the evidence that high-
ranking officials had committed some of them, and the
“hallmark” violations the Respondent committed in
threatening to sell the facility, to eliminate benefits, and
not to rehire strikers and in discharging six employees.
335 NLRB at 1399–1401.
In short, “[t]here must be an end to litigation in Labor
Board cases.”10 We do not believe, for the reasons stated
above, that the relevant circuit courts have contemplated
that a belated request for further hearing would be suffi-
cient to warrant prolonging this administrative proceed-
ing in view of the prejudicial effects of delay. We there-
fore deny the Respondent’s motion to reopen the record.
IT IS ORDERED that the Respondent’s request to reopen
the record and for reconsideration is denied.

MEMBER SCHAUMBER, dissenting.
Contrary to the majority, I would rescind the Gissel1
bargaining order that the Board issued in this case2 based

10 L’Eggs Products, Inc., v. NLRB, 619 F.2d 1337, 1353 (9th Cir.
1980).
1 NLRB v. Gissel Packing Co., 393 U.S. 575 (1969).
on the substantial passage of time between the 1996 elec-
tion held in the representation case and the Board’s 2001
decision. Federal circuit courts repeatedly have chastised
the Board in no uncertain terms for failing to assess the
appropriateness of a Gissel bargaining order in light of
changed circumstances as of the date the order is en-
tered.3 Moreover, the Board itself has recognized that an
excessively long delay of proceedings before the Board,
such as occurred here, would likely render a bargaining
order unenforceable.4 Consequently, further litigation
and delay over the propriety of a bargaining order would
not serve the interests of the unit employees. In these
circumstances, I conclude that a new election is the best
method to allow these employees to exercise their Sec-
tion 7 right to engage in or refrain from union activities.

2 I was not a member of the Board when this case issued at 335
NLRB 1397 (2001), and express no view on the merits.
3 See, e.g., Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074,
1078 (D. C. Cir. 1996), and cases cited therein.
4 Cooper Hand Tools, 328 NLRB 145, 146 (1999); Wallace Interna-
tional de Puerto Rico, 328 NLRB 29 (1999).