JAG Healthcare, Inc. d/b/a Galion Pointe, LLC

National Labor Relations Board - Board Decisions

Dec 15, 2014

361 N.L.R.B. 1167 (N.L.R.B. 2014)

GALION POINTE, LLC 1167
JAG Healthcare, Inc. d/b/a Galion Pointe, LLC and
Service Employees International Union, District
1199, WV/KY/OH. Cases 08–CA–039029, 08–
CA–039112, and 08–CA–039133
December 15, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On March 28, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
699. Thereafter, the General Counsel filed an application
for enforcement and the Respondent filed a cross-petition
for review in the United States Court of Appeals for the
Sixth Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
recommended Order to the extent and for the reasons
stated in the Decision and Order reported at 359 NLRB
699, which is incorporated herein by reference.1 The
1 In affirming the judge’s findings that the Respondent unlawfully
discharged employees Diana Nolen, Natalie Archer, and Traci Atkins,
we note that the judge relied on Relco Locomotives, Inc., 358 NLRB
368 (2012), a case decided by a panel that included two persons whose
appointments to the Board were not valid. See NLRB v. Noel Canning,
supra. Prior to the issuance of Noel Canning, however, the United
States Court of Appeals for the Eighth Circuit enforced the Board’s
Order in Relco Locomotives, see 734 F.3d 764 (2013), and there is no
question regarding the validity of that court’s judgment. Nevertheless,
we would affirm the judge’s findings regarding employees Nolen,
Archer, and Atkins even without relying on Relco, as it is well estab-
lished that the Board may infer antiunion animus from all the circum-
stances presented in a case. See Facchina Construction Co., 343
NLRB 886, 887–888, 896–897 (2004), enfd. mem. 180 Fed.Appx. 178
(D.C. Cir. 2006).
judge’s recommended Order, as further modified herein,
is set forth in full below.
ORDER
The National Labor Relations Board orders that the
Respondent, JAG Healthcare, Inc. d/b/a Galion Pointe,
LLC, Galion, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to hire bargaining unit employees of Vil-
lage Care, the predecessor employer, because of their
union-represented status during the predecessor’s opera-
tion or because of their union activity, or otherwise dis-
criminating against these employees to avoid being obli-
gated to recognize and bargain with Service Employees
International Union, District 1199, WV/KY/OH (the Un-
ion).
(b) Refusing to recognize and bargain in good faith
with the Union as the exclusive collective-bargaining
representative of its employees in the following appro-
priate unit:

All full-time and regular part-time service and mainte-
nance employees, including nurses’ aides, housekeep-
ers, dietary aides and cooks, laundry employees, activi-
ty aides, environmental aides, and maintenance helpers
employed by the Respondent, but excluding all regis-
tered nurses, licensed practical nurses, department
managers/supervisors, office clerical employees, tech-
nicians, professional employees, confidential employ-
ees, management employees, guards and supervisors as
defined in the Act.

(c) Changing bargaining unit employees’ wages,
hours, and other terms and conditions of employment
without first giving the Union notice and an opportunity
to bargain about those changes.
In ordering the tax compensation and Social Security reporting rem-
edies, we rely on Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB 101 (2014).
In addition, we modify the judge’s remedy pursuant to our decision
in Pressroom Cleaners, 361 NLRB 643, 648 (2014). Thus, the Re-
spondent must restore the predecessor’s terms and conditions of em-
ployment until the parties bargain in good faith to agreement or im-
passe, and it may not attempt in compliance proceedings to prove what
the terms and conditions would have been if it had complied with its
obligation to bargain. In regard to the judge’s recommended remedy
for the Respondent’s unlawful changes to unit employees’ contractual
benefits, we add that, to the extent that an employee has made personal
contributions to a fund in lieu of the employer’s delinquent contribu-
tions during the period of the delinquency, the Respondent will reim-
burse the employee, but the amount of such reimbursement will consti-
tute a setoff to the amount that the Respondent otherwise owes the
fund. Finally, we substitute the attached notice in accordance with our
decision in Durham School Services, 360 NLRB 694 (2014).
361 NLRB No. 135

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1168
(d) Telling employees that there will be no union at the
Galion Pointe facility.
(e) Orally issuing or maintaining an unlawful no-
solicitation/no-distribution policy.
(f) Disciplining employees or otherwise restraining,
coercing, or interfering with their exercise of the rights
guaranteed by Section 7 of the Act because they talk
about the Union during worktime, despite allowing other
nonwork-related discussions by employees.
(g) Discharging or otherwise discriminating against
employees for supporting the Service Employees Interna-
tional Union, District 1199, WV/KY/OH, or any other
union, or for engaging in union or protected concerted
activities that are covered by Section 7 of the Act.
(h) 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) Notify the Union in writing that the Respondent
recognizes the Union as the exclusive representative of
the bargaining unit employees under Section 9(a) of the
Act and that it will bargain with the Union concerning
terms and conditions of employment for the bargaining
unit employees.
(b) On request, bargain with the Union as the exclusive
representative of bargaining unit employees at Galion
Pointe regarding wages, hours, and other terms and con-
ditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(c) On the Union’s request, rescind any or all of the
changes in the terms and conditions of employment for
the unit employees that were unilaterally implemented on
or after July 1, 2010.
(d) Make bargaining unit employees whole for losses
caused by the Respondent’s failure to apply the terms
and conditions of employment that existed immediately
before the Respondent began operations at Galion Pointe,
in the manner set forth in the remedy section of the
judge’s decision as amended in this decision.
(e) Before implementing any changes in bargaining
unit employees’ wages, hours, or other terms and condi-
tions of employment, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the bargaining unit described
above.
(f) Within 14 days from the date of this Order, offer
employment to the former employees of Village Care
named below, in their former jobs or, if those jobs no
longer exist, in substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed, discharging if necessary any
employees hired in their places:

Julie Barnhart, Martha Bair (Swiger), Martha Bishop,
Sharon Brady, Jolene Dennis, Ceileata Dotson, Vicky
Ely, Wanda Haney, Kathleen McIe, Sandra Nolen,
Sandra Ohler, Brenda Peterman, Brandi Riley, Shirley
Sedmak, Mary Siegenthal, Bobbie Stephens, Cassandra
Storer, Delena Teeter, Judy Watts, and Jackie Zent.

(g) Make the employees named in paragraph 2(f)
whole for any loss of earnings and other benefits suffered
because of the Respondent’s unlawful refusal to hire
them, in the manner set forth in the remedy section of the
judge’s decision as amended in this decision, less any net
interim earnings, plus interest.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
the employees named in paragraph 2(f) and, within 3
days thereafter, notify them in writing that this has been
done and that the refusal to hire them will not be used
against them in any way.
(i) Within 14 days from the date of this Order, offer
Natalie Archer, Traci Atkins, and Diana Nolen full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
(j) Make Natalie Archer, Traci Atkins, and Diana No-
len whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision as amended in this decision, less any net interim
earnings, plus interest.
(k) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges of
Natalie Archer, Traci Atkins, and Diana Nolen, and with-
in 3 days thereafter, notify the employees in writing that
this has been done and that the discharges will not be
used against them in any way.
(l) Compensate bargaining unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each bargaining unit
employee.
(m) 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,
GALION POINTE, LLC 1169
necessary to analyze the amount of backpay due under
the terms of this Order.
(n) Within 14 days after service by the Region, post at
its facility in Galion, Ohio copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive 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, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since August 23, 2011.
(o) Within 21 days after service by the Region, file
with the Regional Director for Region 8 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.
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.

2 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.”
WE WILL NOT refuse to hire bargaining unit employees
of Village Care, the predecessor employer, because of
their union-represented status during the predecessor’s
operation or because of their union activity, or otherwise
discriminate against these employees to avoid being ob-
ligated to recognize and bargain with Service Employees
International Union, District 1199, WV/KY/OH (the Un-
ion).
WE WILL NOT refuse to recognize and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate unit:

All full-time and regular part-time service and mainte-
nance employees, including nurses’ aides, housekeep-
ers, dietary aides and cooks, laundry employees, activi-
ty aides, environmental aides, and maintenance helpers
employed by the Respondent, but excluding all regis-
tered nurses, licensed practical nurses, department
managers/supervisors, office clerical employees, tech-
nicians, professional employees, confidential employ-
ees, management employees, guards and supervisors as
defined in the Act.

WE WILL NOT change bargaining unit employees’ wag-
es, hours, and other terms and conditions of employment
without first giving the Union notice and an opportunity
to bargain about those changes.
WE WILL NOT tell employees that there will be no un-
ion at the Galion Pointe facility.
WE WILL NOT orally issue or maintain an unlawful no-
solicitation/no-distribution policy.
WE WILL NOT discipline you or otherwise restrain, co-
erce, or interfere with your exercise of the rights listed
above because you talk about the Union during work-
time, despite allowing other nonwork-related discus-
sions.
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Service Employees Inter-
national Union, District 1199, WV/KY/OH, or any other
union, or for engaging in union or protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights listed above.
WE WILL notify the Union in writing that we recognize
it as the exclusive representative of our bargaining unit
employees and that we will bargain with it concerning
terms and conditions of employment for the bargaining
unit employees.
WE WILL, on request, bargain with the Union as the
exclusive representative of bargaining unit employees at
Galion Pointe regarding wages, hours, and other terms

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
and conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
WE WILL, on the Union’s request, rescind any or all of
the changes in the bargaining unit employees’ terms and
conditions of employment that we unilaterally imple-
mented on or after July 1, 2010.
WE WILL make bargaining unit employees whole for
losses caused by our failure to apply the terms and condi-
tions of employment that existed immediately before we
began operations at Galion Pointe.
WE WILL, before implementing any changes in bar-
gaining unit employees’ wages, hours, or other terms and
conditions of employment, notify and, on request, bar-
gain with the Union as the exclusive collective-
bargaining representative of our employees in the bar-
gaining unit described above.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to the former employees of
Village Care named below, in their former jobs or, if
those jobs no longer exist, in substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed, discharging if
necessary any employees hired in their places:

Julie Barnhart, Martha Bair (Swiger), Martha Bishop,
Sharon Brady, Jolene Dennis, Ceileata Dotson, Vicky
Ely, Wanda Haney, Kathleen McIe, Sandra Nolen,
Sandra Ohler, Brenda Peterman, Brandi Riley, Shirley
Sedmak, Mary Siegenthal, Bobbie Stephens, Cassandra
Storer, Delena Teeter, Judy Watts, and Jackie Zent.

WE WILL make the employees named in the preceding
paragraph whole for any loss of earnings and other bene-
fits suffered because of our unlawful refusal to hire them,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire the above-named employees, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the refusal to hire
them will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, offer Natalie Archer, Traci Atkins, and Diana
Nolen full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Natalie Archer, Traci Atkins, and Di-
ana Nolen whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges of Natalie Archer, Traci Atkins, and Diana
Nolen, and WE WILL, within 3 days thereafter, notify each
of them in writing that this has been done and that the
discharges will not be used against them in any way.
WE WILL compensate bargaining unit employees for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each bar-
gaining unit employee.

JAG HEALTHCARE, INC. D/B/A GALION POINTE,
LLC

The Board’s decision can be found at
www.nlrb.gov/case/08–CA–039029 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.