Heartland Human Services

National Labor Relations Board - Board Decisions

May 15, 2014

360 NLRB No. 101 (N.L.R.B. 2014)

360 NLRB No. 101
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.
Heartland Human Services and American Federation
of State, County and Municipal Employees
(AFSCME), Council 31, AFL–CIO. Case 14–
CA–118716
May 15, 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 an amended charge filed by Ameri-
can Federation of State, County and Municipal Employ-
ees (AFSCME), Council 31, AFL–CIO (the Union), on
December 10, 2013, and January 16, 2014, respectively,
the General Counsel issued the complaint on January 24,
2014, against Heartland Human Services (the Respond-
ent), alleging that the Respondent violated Section
8(a)(5) and (1) of the Act by implementing a drug testing
policy for employees who sustain a work-related injury
that requires medical treatment, without prior notice to
the Union and without affording the Union an opportuni-
ty to bargain with the Respondent with respect to this
conduct.
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 February 5, 2014, the General
Counsel filed with the Board a Motion for Summary
Judgment. On February 6, 2014, 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, stating, among
other things, that it agreed that no genuine issues of ma-
terial 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). The United States Court of Appeals for
the Seventh Circuit enforced the Board’s Order in Heart-
land I on March 14, 2014.2
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 a reasonable belief that the Union no
longer enjoyed the majority support of its employees.
Thus, the Respondent admits that about November 27,
2013, it implemented a drug testing policy for employees
who sustain a work-related injury that requires medical
treatment without prior notice to the Union and without
affording the Union an opportunity to bargain. The Re-
spondent urges the Board to grant summary judgment in
favor of the Respondent and dismiss the complaint.3

1 359 NLRB No. 76.
2 Heartland Human Services v. NLRB, -- F. 3d – (7th Cir. 2014),
2014 WL 983618. Subsequent to the Board’s decision in Heartland I,
but prior to the court’s enforcement of that Order, the Board issued
Heartland Human Services, 360 NLRB No. 8 (2013) (Heartland II),
and Heartland Human Services, 360 NLRB No. 47 (2014) (Heartland
III). In those cases the Board again granted the General Counsel’s
motions 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 in Heartland II and III but asserted that its
conduct was not unlawful 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
No. 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 Heartland I. The court consolidated the Board’s application
for enforcement and the Respondent’s cross-petition in Heartland II,
and that consolidated appeal was held in abeyance pending the outcome
in Heartland I. On March 19, 2014, the Board filed an application for
enforcement in Heartland III. On April 28, 2014, the United States
Court of Appeals for the Seventh Circuit entered its Consent Judgment
in Heartland II, enforcing the Board’s Order in full.
3 In the alternative, the Respondent requests that the Board stay the-
se proceedings until the Seventh Circuit Court of Appeals renders
judgment in Heartland I. As noted above, that Court enforced the
Board’s Order in Heartland I on March 14, 2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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, Heartland II, and Heartland III, the Re-
spondent claims that its admitted conduct is not unlawful
because of its reasonable belief that the Union does not
enjoy the majority support of the employees in the col-
lective-bargaining unit, based exclusively on the Union’s
loss of the June 4, 2012 representation election and on
the Respondent’s claim that the Board erred in directing
a rerun election in Case 14–RD–063069.
As noted, the Respondent’s defense has previously
been raised to the Board and the court and found to be
without merit. It is rejected here again for the same rea-
sons.
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 December 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
(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
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
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 November 27, 2013, the Respondent imple-
mented a drug testing policy for employees who sustain a
work-related injury that requires medical treatment.
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 this conduct with-
HEARTLAND HUMAN SERVICES 3
out prior notice to the Union and without affording the
Union an opportunity to bargain with the Respondent
with respect to this conduct.
CONCLUSION OF LAW
By implementing a drug testing policy for employees
who sustain a work-related injury that requires medical
treatment without prior notice to the Union and without
affording the Union an opportunity to bargain with the
Respondent with respect to this conduct, 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. The Respondent’s unfair la-
bor practices 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.4 Specifically, having
found the Respondent violated Section 8(a)(5) and (1)
by, on about November 27, 2013, implementing a drug
testing policy for employees who sustain a work-related
injury that requires medical treatment, we shall order the
Respondent to rescind this unilateral change 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.
We shall also order the Respondent to offer any unit
employees who were discharged pursuant to the policy
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed. Further, we shall
order the Respondent to make any unit employees who
were disciplined pursuant to the policy whole for any
loss of earnings and other benefits suffered as a result of
the Respondent’s unlawful conduct, with interest.
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at

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;
Heartland Human Services, 360 NLRB No. 8, supra, Heartland Human
Services, 360 NLRB No. 47, supra. Therefore, we will require that the
Respondent’s executive director or, at the Respondent’s option, a Board
agent in the executive director’s presence, read the remedial notice to
the Respondent’s employees.
the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8
(2010). In addition, we shall order the Respondent to
compensate affected employees for the adverse tax con-
sequences, if any, of receiving lump-sum backpay
awards and to file a report with the Social Security Ad-
ministration allocating the backpay awards to the appro-
priate calendar quarters for each employee. To the extent
that discipline did not result in employees being separat-
ed from employment, any make-whole remedy shall be
in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Howev-
er, the Respondent is entitled to show, at compliance,
that it would have disciplined those employees even in
the absence of the unilateral implementation of the drug
testing policy, avoiding as to those employees any
backpay and reinstatement obligation.5
The Respondent shall also be required to expunge
from its files and records any and all references to the
unlawful discipline, and to notify the employees in writ-
ing that this has been done and that the unlawful disci-
pline will not be used against them in any way. Alt-
hough the Respondent is required to remove any record
of its discipline of an employee under a changed new
policy, should the Respondent establish at compliance
that it would have disciplined the employee even in the
absence of the unilateral implementation of the drug test-
ing policy, it may maintain a record of the employee’s
discipline. See Uniserv, supra, 351 NLRB at 1361 fn. 1.6
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 implementing a drug testing policy

5 Uniserv, 351 NLRB 1361 fn. 1 (2007); Allied Aviation Fueling of
Dallas, LP, 347 NLRB 248 fn. 3 (2006), enfd. 490 F.3d 374 (5th Cir.
2007).
6 Because, as stated above, the Respondent will have the opportuni-
ty at compliance to show that it would have discharged or disciplined
employees even absent the unilateral implementation of the drug testing
policy, the Order and notice shall not include the requirement that the
expunction or reinstatement offers be completed “within 14 days of the
date of the Board’s Order.” Allied Aviation Fuel, supra, 347 NLRB
248 fn. 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
for employees who sustain a work-related injury that
requires medical treatment. The unit is:
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.
(b) 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 implementation of a drug
testing policy for employees who sustain a work-related
injury that requires medical treatment 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) Offer any unit employees who were discharged
pursuant to the drug testing policy full reinstatement to
their former positions, or, if those positions no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(c) Make any unit employees who were disciplined
pursuant to the drug testing policy whole for any loss of
earnings and other benefits suffered as a result of the
unlawful discipline, in the manner set forth in the remedy
section of the decision.
(d) Remove from its files any reference to any unlaw-
ful discipline, and within 3 days thereafter notify the em-
ployees in writing that this has been done and that the
unlawful discipline will not be used against them in any
way.
(e) Compensate the unit employees for any adverse
income tax consequences of receiving their backpay in
one lump sum, and file a report with the Social Security
Administration allocating the unit employees’ backpay
awards to the appropriate calendar quarters for each em-
ployee.
(f) 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 amounts of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its facility in Effingham, Illinois, copies of the attached
notice marked “Appendix.”7 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
employees employed by the Respondent at any time
since about November 27, 2013.
(h) 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.
(i) 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., May 15, 2014
Mark Gaston Pearce, Chairman
Philip Miscimarra, Member
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

7 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.”
HEARTLAND HUMAN SERVICES 5
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 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 implementing a drug testing policy for
employees who sustain a work-related injury that re-
quires medical treatment. 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 in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the drug testing policy for employees
who sustain a work-related injury that requires medical
treatment that we unilaterally implemented about No-
vember 27, 2013, and restore the status quo ante until
such time as we reach an agreement for a new collective-
bargaining agreement or a lawful impasse based on
good-faith negotiations with the Union.
WE WILL offer any unit employees who were dis-
charged pursuant to the drug testing policy full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make any unit employees who were disci-
plined pursuant to the drug testing policy whole for any
loss of earnings and other benefits suffered as a result of
the unlawful discipline, with interest.
WE WILL remove from our files any reference to any
unlawful discipline, and within 3 days thereafter notify
the employees in writing that this has been done and that
the unlawful discipline will not be used against them in
any way.
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 for each employee.
HEARTLAND HUMAN SERVICES
The Board’s decision can be found at
www.nlrb.gov/case/14-CA-118716 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273–1940.