Heartland Human Services

National Labor Relations Board - Board Decisions

Feb 20, 2014

360 NLRB No. 47 (N.L.R.B. 2014)

360 NLRB No. 47
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the
Executive 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.
Heartland Human Services and American Federation
of State, County and Municipal Employees
(AFSCME), Council 31, AFL–CIO. Case 14–
CA–113519
February 20, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The General Counsel seeks summary judgment in this
case on the ground that there are no genuine issues of
material fact as to the allegations of the complaint, and
that the Board should find, as a matter of law, that the
Respondent has violated Section 8(a)(5) and (1) of the
Act.
Upon a charge and amended charges filed by Ameri-
can Federation of State, County and Municipal Employ-
ees (AFSCME), Council 31, AFL–CIO (the Union) on
September 17, November 12 and 20, 2013, respectively,
the General Counsel issued the complaint on November
20, 2013, against Heartland Human Services (the Re-
spondent), alleging that the Respondent violated Section
8(a)(5) and (1) of the Act by (a) changing its employees’
health insurance by increasing the deductible from $1500
to $5000 and requiring the employees to seek reim-
bursement for their out of pocket expenditures from a
third-party administrator without prior notice to the Un-
ion and without affording the Union an opportunity to
bargain; and (b) bypassing the Union and dealing directly
with the unit employees regarding a rewards program for
employees who timely bill their services.
The Respondent filed an answer admitting all of the
factual allegations in the complaint, denying all of the
legal conclusions in the complaint, and asserting an af-
firmative defense. On December 6, 2013, the General
Counsel filed with the Board a Motion for Summary
Judgment. On December 11, 2013, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be grant-
ed. The Respondent filed a response, raising an addi-
tional affirmative defense, and stating among other
things that it agreed that no genuine issues of material
fact exist warranting a hearing.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The complaint alleges, and the Respondent admits, that
the Union was certified as the exclusive collective-
bargaining representative of the unit employees, that a
decertification election was conducted on June 4, 2012,
that a revised tally of ballots showed that a majority of
valid votes had not been cast for the Union, and that on
September 28, 2012, the Board adopted the hearing of-
ficer’s recommendation in Case 14–RD–063069 that a
rerun election be conducted. The complaint further al-
leges, and the Respondent admits, that on March 18,
2013, the Board issued a Decision and Order in Case 14–
CA–0878861 granting the General Counsel’s motion for
summary judgment and finding, among other things, that
the Respondent violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from the Union as the
exclusive collective-bargaining representative of the unit
(Heartland I). Upon the Respondent’s refusal to comply
with the Board’s March 18, 2013 Order, the Board has
sought enforcement of its Order in the United States
Court of Appeals for the Seventh Circuit (Case 13–
1954).2
The Respondent admits its continued refusal to recog-
nize and bargain with the Union but contends that its
conduct does not violate Section 8(a)(5) and (1) because
the Respondent lawfully withdrew recognition from the
Union based on the fact that it no longer enjoyed the ma-
jority support of its employees.
Thus, the Respondent admits that about September 1,
2013, it changed employees’ health insurance by increas-
ing the deductible from $1500 to $5000, and requiring
employees to seek reimbursement for their out-of-pocket
expenditures from a third-party administrator without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain. The Respondent further
admits that about October 16, 2013, its Executive Direc-
tor Jeff Bloemker bypassed the Union and dealt directly
with the unit employees regarding a rewards program for
employees who timely bill their services. The Respond-

1 359 NLRB No. 76.
2 Subsequently, in Heartland Human Services, 360 NLRB No. 8
(2013) (Heartland II), the Board again granted the General Counsel’s
Motion for Summary Judgment, finding that the Respondent violated
Sec. 8(a)(5) and (1) by unilaterally changing the employees’ terms and
conditions of employment without prior notice to the Union and with-
out affording the Union an opportunity to bargain with the Respondent
with respect to this conduct. As in Heartland I, the Respondent admit-
ted the complaint allegations but asserted that its conduct was not un-
lawful because the Union lacked majority status and therefore the
Board should enter summary judgment in its favor or at least stay the
proceedings pending the court’s decision in Heartland I. The Board
filed an application for enforcement in Heartland II (Case 13–3706),
but moved to hold the case in abeyance, as the parties agreed that the
issues in Heartland II (unilateral changes) would be decided in Heart-
land I. The court consolidated the Board’s application for enforcement
and the Respondent’s cross-petition in Heartland II, and that consoli-
dated appeal is being held in abeyance pending the outcome in Heart-
land I.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
ent urges the Board to grant summary judgment in favor
of the Respondent and dismiss the complaint, or in the
alternative, to stay these proceedings until the Seventh
Circuit Court of Appeals renders its judgment in Heart-
land I.
We find that there are no issues warranting a hearing
because the Respondent has admitted the crucial factual
allegations set forth above. In accord with its position in
Heartland I and Heartland II, the Respondent claims that
its admitted conduct is not unlawful because of its rea-
sonable belief that the Union does not enjoy the majority
support of the employees in the collective-bargaining
unit, based exclusively on the Union’s loss of the June 4,
2012 representation election and the Board’s erroneous
direction to conduct a rerun election in Case 14–RD–
063069.
As noted, the Respondent’s defense was raised to the
Board and found to be without merit in Heartland I and
Heartland II and it is rejected here for the same reasons.
With respect to the Respondent’s request to dismiss
the complaint or, in the alternative, to stay these proceed-
ings pending a determination in Heartland I by the Sev-
enth Circuit, the request is denied. It is well settled that
the pendency of collateral litigation does not suspend a
respondent’s duty to bargain under Section 8(a)(5).3
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, an Illinois corpo-
ration with an office and place of business located at
1200 North 4th Street, Effingham, Illinois, has been en-
gaged in providing residential and outpatient mental
health services.
In conducting its operations during the 12-month peri-
od ending October 31, 2013, the Respondent derived
gross revenues in excess of $100,000, and purchased and
received at its Effingham, Illinois facility goods valued
in excess of $20,000 directly from points located outside
the State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and

3 See Heartland Human Services, 360 NLRB No. 8, slip op. at 2 fn.
3 (2013); Maywood Do-Nut Co., 256 NLRB 507, 508 (1981) (citing
Keller Aluminum Chairs Southern, Inc., 173 NLRB 947, 952 fn. 14
(1968)); see also Great Dane Trailers, Inc., 191 NLRB 6 (1971);
Porta-Kamp Mfg. Co., 189 NLRB 899 (1971); and Sec. 10(g) of the
Act, which provides: “The commencement of proceedings under sub-
section (e) or (f) of this section shall not, unless specifically ordered by
the court, operate as a stay of the Board’s order.”
(7) of the Act, is a health care institution within the
meaning of Section 2(14) of the Act, and that the Union,
American Federation of State, County and Municipal
Employees (AFSCME), Council 31, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the following individuals held
the positions set forth opposite their respective names
and have been supervisors of the Respondent within the
meaning of Section 2(11) of the Act and agents of the
Respondent within the meaning of Section 2(13) of the
Act:
Jeff Bloemker — Executive Director
Debra Johnson — Human Resources Director
Linda Warner — Director of Case Management
The following employees of the Respondent (the unit)
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time employees em-
ployed by Respondent at its Effingham, Illinois facility,
excluding office clerical and professional employees,
guards and supervisors as defined in the Act.
On February 1, 2006, the Union was certified as the
exclusive collective-bargaining representative of the unit.
The most recent collective-bargaining agreement cover-
ing the unit was effective from August 21, 2009, through
August 20, 2011. At all material times since February 1,
2006, based on Section 9(a) of the Act, the Union has
been the exclusive collective-bargaining representative of
the unit.
On June 4, 2012, pursuant to a petition filed in Case
14–RD–063069, an election was conducted in the unit.
The tally of ballots disclosed that 19 ballots were cast for
the Union, 18 votes were cast against the Union, and
there was 1 challenged ballot, which was sufficient to
affect the results of the election. On June 11, 2012, the
Union filed objections to the election. On June 28, 2012,
a hearing on the challenged ballot and the objections was
held. On July 18, 2012, the hearing officer issued a re-
port recommending that the challenged ballot be opened
and counted. If the revised tally of ballots disclosed that
a majority of valid votes had not been cast for the Union,
the hearing officer recommended that a rerun election be
conducted, having further recommended that three objec-
tions be sustained. On August 9, 2012, the Respondent
filed exceptions to the hearing officer’s report. On Sep-
tember 28, 2012, the Board adopted the hearing officer’s
HEARTLAND HUMAN SERVICES 3
report, findings, and recommendations. On October 12,
2012, the challenged ballot was opened and counted.
The revised tally of ballots disclosed that a majority of
valid votes had not been cast for the Union. According-
ly, a rerun election will be conducted at an appropriate
date, time, and place to be determined by the Regional
Director.
On March 18, 2013, the Board issued a Decision and
Order in Case 14–CA–087886, finding, among other
things, that the Respondent violated Section 8(a)(5) and
(1) by withdrawing recognition from the Union as the
exclusive collective-bargaining representative of the unit.
Subsequently, the Respondent engaged in the follow-
ing conduct at issue here.
About September 1, 2013, the Respondent changed the
employees’ health insurance by increasing the deductible
from $1500 to $5000, and requiring employees to seek
reimbursement for their out-of-pocket expenditures from
a third-party administrator.
The subject set forth above relates to wages, hours, and
other terms and conditions of employment of the unit and
is a mandatory subject for the purposes of collective bar-
gaining.
The Respondent engaged in the conduct described
above without prior notice to the Union and without af-
fording the Union an opportunity to bargain with the
Respondent with respect to this conduct.
About October 16, 2013, the Respondent, by Execu-
tive Director Bloemker, at a residential staff meeting at
the Respondent’s facility, bypassed the Union and dealt
directly with the unit employees regarding a rewards
program for employees who timely bill their services.
CONCLUSION OF LAW
By the conduct described above, the Respondent has
been failing and refusing to bargain collectively and in
good faith with the exclusive collective-bargaining repre-
sentative of its employees in violation of Section 8(a)(5)
and (1) of the Act. The Respondent’s unfair labor prac-
tices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found the Respondent violated Section 8(a)(5) and (1)
by, since about September 1, 2013, changing its employ-
ees’ health insurance by increasing the deductible from
$1500 to $5000 and requiring the employees to seek re-
imbursement for their out of pocket expenditures from a
third-party administrator, we shall order the Respondent
to rescind these unilateral changes and restore the status
quo ante until such time as the Respondent and the Union
reach an agreement for a new collective-bargaining
agreement or a lawful impasse based on good-faith nego-
tiations. We shall also order the Respondent to make the
unit employees whole for any losses attributable to the
Respondent’s unlawful conduct, as set forth in Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), and Kraft Plumbing & Heating, 252
NLRB 891 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), compounded dai-
ly as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
In addition, we shall order the Respondent to reim-
burse the unit employees in an amount equal to the dif-
ferences in taxes owed upon receipt of a lump-sum
backpay payment and taxes that would have been owed
had the Respondent not violated Section 8(a)(5) and (1)
as concluded above. Further, we shall order the Re-
spondent to submit the appropriate documentation to the
Social Security Administration so that when backpay is
paid, it will be allocated to the appropriate periods.4
ORDER
The National Labor Relations Board orders that the
Respondent, Heartland Human Services, Effingham, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with American Federation of State, County
and Municipal Employees (AFSCME), Council 31,
AFL–CIO as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit by unilaterally changing its employees’ health insur-
ance by increasing the deductible from $1500 to $5000
and requiring the employees to seek reimbursement for
their out of pocket expenditures from a third-party ad-
ministrator without prior notice to the Union and without
affording the Union an opportunity to bargain with the
Respondent with respect to this conduct. The unit is:
All full-time and regular part-time employees em-
ployed by Respondent at its Effingham, Illinois facility,

4 The General Counsel has requested a notice-reading remedy. We
agree that this special remedy is appropriate to dispel the effects of the
Respondent’s serious and persistent unfair labor practices, especially in
light of the Respondent’s repetition of the same type of misconduct
previously found unlawful and previously found to warrant such a
remedy. See Heartland Human Services, 359 NLRB No. 76, supra;
and Heartland Human Services, 360 NLRB No. 8, supra. Therefore,
we will require that the Respondent’s executive director or, at the Re-
spondent’s option, a Board agent in the executive director’s presence,
read the remedial notice to the Respondent’s employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
excluding office clerical and professional employees,
guards and supervisors as defined in the Act.
(b) Bypassing the Union and dealing directly with the
unit employees regarding a rewards program for employ-
ees who timely bill their services.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unilateral changes in terms and condi-
tions of employment and restore the status quo ante until
such time as the Respondent and the Union reach an
agreement for a new collective-bargaining agreement or
a lawful impasse based on good-faith negotiations.
(b) Make the unit employees whole, with interest, for
any losses sustained due to the unlawfully imposed
changes in wages, benefits, and other terms and condi-
tions of employment in the manner set forth in the reme-
dy section of this decision.
(c) Compensate the unit employees for any adverse in-
come tax consequences of receiving their backpay in one
lump sum, and file a report with the Social Security Ad-
ministration allocating the unit employees’ backpay
awards to the appropriate calendar quarters for each em-
ployee.
(d) Within 14 days after service by the Region, post at
its facility in Effingham, Illinois, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense,
copies of the notice to all current employees and former

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
employees employed by the Respondent at any time
since about September 1, 2013.
(e) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by the Respondent’s executive
director or, at the Respondent’s option, by a Board agent
in the executive director’s presence.
(f) Within 21 days after service by the Region, file
with the Regional Director for Region 14 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. February 20, 2014
Mark Gaston Pearce, Chairman
Philip A. Miscimarra, Member
Kent Y. Hirozawa, 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
violated 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 representatives 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 fail and refuse to recognize and bargain
with American Federation of State, County, and Munici-
pal Employees (AFSCME), Council 31, AFL–CIO, the
Union, as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit
by unilaterally changing our employees’ health insurance
by increasing the deductible from $1500 to $5000 and
requiring the employees to seek reimbursement for their
HEARTLAND HUMAN SERVICES 5
out of pocket expenditures from a third-party administra-
tor without affording the Union an opportunity to bargain
with the Respondent with respect to this conduct. The
unit is:
All full-time and regular part-time employees em-
ployed by us at our Effingham, Illinois facility, exclud-
ing office clerical and professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT bypass the Union and deal directly with
the unit employees regarding a rewards program for em-
ployees who timely bill their services.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unilateral changes we made to the
terms and conditions of employment for our unit em-
ployees and restore the status quo ante until such time as
we reach an agreement with the Union for a new collec-
tive-bargaining agreement or a lawful impasse based on
good-faith negotiations.
WE WILL make our unit employees whole for any loss-
es they sustained due to the unlawfully imposed changes
in wages, benefits, and other terms and conditions of
employment, with interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file a report with the Social
Security Administration allocating the backpay awards to
the appropriate calendar quarters.
HEARTLAND HUMAN SERVICES