Law-Den Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 2019

368 N.L.R.B. 95 (N.L.R.B. 2019)

368 NLRB No. 95
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.
Law-Den Nursing Home, Inc. and SEIU Healthcare
Michigan. Case 07–CA–233610
October 16, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
The General Counsel seeks a default judgment in this
case because Law-Den Nursing Home (the Respondent)
has failed to file an answer to the complaint. Upon a
charge and an amended charge filed by SEIU Healthcare
Michigan (the Union) on January 3, 2019, and February 5,
2019, respectively, the General Counsel issued a com-
plaint and notice of hearing on April 5, 2019, against the
Respondent, alleging that it has violated Section 8(a)(5)
and (1) of the Act. The Respondent failed to file an an-
swer.
On June 19, 2019, the General Counsel filed with the
National Labor Relations Board a Motion for Default
Judgment. Thereafter, on June 20, 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 filed no response. The allega-
tions 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
Section 102.20 of the Board’s Rules and Regulations
provides that the allegations in a complaint shall be
deemed admitted if an answer is not filed within 14 days
from service of the complaint, unless good cause is shown.
In addition, the complaint affirmatively stated that unless
an answer was received by April 19, 2019, the Board may
find, pursuant to a motion for default judgment, that the
allegations in the complaint are true. Further, the undis-
puted allegations in the General Counsel’s motion

1 The General Counsel’s motion for default judgment and attached
exhibits indicate that the complaint and the April 23 reminder letter were
served on the Respondent by both certified and regular mail. The certi-
fied mail receipts show that the Respondent’s certified mail copies of
both the complaint and the reminder letter were retrieved on May 18,
2019, and neither copy sent by regular mail was returned as undelivera-
ble. The General Counsel’s motion for default judgment was served on
the Respondent only by regular mail, and it was not returned as undeliv-
erable. Attached to the motion for default judgment is a June 19 affidavit
provided by the Regional Director, stating that no document purporting
to be an answer to the complaint had been filed by the Respondent as of
that date.
It is well settled that a respondent’s failure or refusal to accept certi-
fied mail or to provide for appropriate service cannot serve to defeat the
disclose that the Region, by letter dated April 23, 2019,
advised the Respondent that unless an answer was re-
ceived by April 30, 2019, the Region may pursue a default
judgment. Nevertheless, the Respondent failed to file an
answer.1
In the absence of good cause being shown for the failure
to file an answer, we deem the allegations in the complaint
to be admitted as true, and we grant the General Counsel’s
Motion for Default Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a corpo-
ration with an office and place of business in Detroit,
Michigan (the Detroit facility), and has been operating as
a nursing home.
During the calendar year ending December 31, 2018,
the Respondent, in conducting its operations described
above, derived gross revenues in excess of $100,000 and
received goods and materials valued in excess of $5000
directly from points located outside the State of Michigan.
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 a health care institution within the meaning
of Section 2(14) of the Act, and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, Todd Johnson has held the posi-
tion of the Respondent’s Administrator and has been a su-
pervisor of the Respondent within the meaning of Section
2(11) of the Act and an agent of the Respondent within the
meaning of Section 2(13) of the Act.
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 and regular part-time cooks, maintenance
employees, medical attendants, laundry attendants and
purposes of the Act. See, e.g., Cray Construction Group, LLC, 341
NLRB 944, 944 fn. 5 (2004); I.C.E. Electric, Inc., 339 NLRB 247, 247
fn. 2 (2003). Further, the failure of the Postal Service to return docu-
ments served by regular mail indicates actual receipt of those documents
by the Respondent. Id.; Lite Flight, Inc., 285 NLRB 649, 650 (1987),
enfd. sub nom. NLRB v. Sherman, 843 F.2d 1392 (6th Cir. 1988).
The complaint alleges that the Respondent closed its Detroit, Michi-
gan facility (the Detroit facility). It is well established that a respond-
ent’s asserted cessation of operations does not excuse it from filing an
answer to a complaint. See, e.g., UNY LLC d/b/a General Super Plating,
367 NLRB No. 113 (2019); OK Toilet & Towel Supply, Inc., 339 NLRB
1100, 1100–1101 (2003); Dong-A Daily North America, 332 NLRB 15,
15–16 (2000); Holt Plastering, Inc., 317 NLRB 451, 451 (1995).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
food service workers employed at the Respondent’s fa-
cility located at 1640 Webb, Detroit, Michigan, but ex-
cluding guards and supervisors as defined by the Act,
and all other employees.
At all material times, the Respondent has recognized the
Union as the exclusive collective-bargaining representa-
tive of the unit. This recognition has been embodied in
successive collective-bargaining agreements, the most re-
cent of which is effective from May 13, 2017, through
May 12, 2020.
At all material times, based on Section 9(a) of the Act,
the Union has been the exclusive collective-bargaining
representative of the unit.
About November 28, 2018, during bargaining over the
effects of the closure of the Respondent’s Detroit facility,
the Respondent and the Union agreed that unit employees
would be paid their accrued vacation pay and accrued sick
pay prior to the date the Respondent’s Detroit facility
ceased operations and the Respondent terminated its em-
ployees.
About March 15, 2019, the Respondent ceased opera-
tions at its Detroit facility and terminated its employees.
About March 15, 2019, the Respondent failed to con-
tinue in effect the terms and conditions of the November
28, 2018 agreement described above by failing and refus-
ing to pay unit employees their accrued vacation pay and
accrued sick pay as agreed to by the Union and the Re-
spondent on November 28, 2018.
The terms and conditions of employment described
above are mandatory subjects for the purposes of collec-
tive bargaining.
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 Re-
spondent with respect to this conduct and effects of this
conduct.
Since about November 16, 2018, the Union has re-
quested, inter alia, by certified mail and by email, that the
Respondent furnish the Union with the following infor-
mation regarding the closing of the Detroit facility:
(1) All current accrued benefits of bargaining unit em-
ployees, including accrued vacation pay and accrued sick
pay;
(2) Effective dates of any operational changes; and
(3) If the closing of the Respondent’s facility will be
permanent.

2 We decline the General Counsel’s request for an affirmative bar-
gaining order. The Respondent failed to adhere to the terms of its No-
vember 28, 2018 agreement with the Union. The appropriate remedy is
to order the Respondent to honor the agreement. See Bath Iron Works
Corp., 345 NLRB 499, 501 (2005). Member McFerran would include
The information requested by the Union, as described
above, is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-bargain-
ing representative of the unit.
Since November 16, 2018, the Respondent has failed
and refused to furnish the Union with the requested infor-
mation described above.
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 described 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 cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent violated Section 8(a)(5) and (1)
by failing to continue in effect the terms and conditions of
the November 28, 2018 agreement described above by
failing and refusing to pay unit employees their accrued
vacation pay and accrued sick pay, we shall order the Re-
spondent to make the unit employees whole for any loss
of earnings and other benefits they may have suffered as a
result of the Respondent’s unlawful conduct, including by
paying them their accrued vacation pay and sick pay, in
the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010). Having fur-
ther found that the Respondent violated Section 8(a)(5)
and (1) of the Act by failing and refusing to provide the
Union with requested information that is necessary and
relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit
employees, we shall order the Respondent to provide the
Union with the information it requested since about No-
vember 16, 2018.2
We shall also order the Respondent to compensate unit
employees for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards and file with the Re-
gional Director for Region 7, within 21 days of the date
the affirmative bargaining order requested by the General Counsel to
remedy the failure to bargain allegation in the complaint, because enforc-
ing a settlement agreement that the Union negotiated in the face of the
Respondent’s 8(a)(5) violations does not restore the status quo ante.
LAW-DEN NURSING HOME, INC. 3
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the
appropriate calendar years for each employee, in accord-
ance with AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016).
Finally, because the Respondent’s facility is closed, we
shall order the Respondent to mail a copy of the attached
notice to the Union and to the last known addresses of its
former unit employees to inform them of the outcome of
this proceeding.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Law-Den Nursing Home, Inc., Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with SEIU Healthcare Michigan (the Union) as
the exclusive collective-bargaining representative of em-
ployees in the following unit by failing to continue in ef-
fect the terms and conditions of the agreement reached on
November 28, 2018, to pay unit employees their accrued
vacation pay and accrued sick pay:
All full-time and regular part-time cooks, maintenance
employees, medical attendants, laundry attendants and
food service workers employed at the Respondent’s fa-
cility located at 1640 Webb, Detroit, Michigan, but ex-
cluding guards and supervisors as defined by the Act,
and all other employees.

(b) Refusing to bargain collectively and in good faith
with the Union by failing and refusing to furnish it with
requested information that is necessary and relevant to the
Union’s performance of its functions as the exclusive col-
lective-bargaining representative of the Respondent’s unit
employees.
(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) Honor and comply with the terms and conditions of
the November 28, 2018 agreement, and rescind any and
all changes to unit employees’ terms and conditions of em-
ployment that the Respondent implemented by not apply-
ing that agreement to unit employees.
(b) Make unit employees whole for any loss of earnings
or other benefits, including by payment to employees of
their accrued vacation pay and accrued sick pay, suffered

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the National
Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the
as a result of the Respondent’s failure to abide by and ap-
ply to unit employees the terms of the November 28, 2018
agreement, in the manner set forth in the remedy section
of this decision.
(c) Furnish to the Union in a timely manner the infor-
mation it requested by certified mail and email since about
November 16, 2018.
(d) Compensate the affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay pay is
fixed, either by agreement or Board order, a report allocat-
ing the backpay awards to the appropriate calendar years
for each employee.
(e) 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, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order. If requested, the originals of such records
shall be provided to the Board or its agents in the same
manner.
(f) Within 14 days after service by the Region, dupli-
cate and mail, at its own expense and after being signed
by the Respondent’s authorized representative, copies of
the attached notice marked “Appendix,”3 to the Union and
to all unit employees who were employed by the Respond-
ent at any time since November 16, 2018. In addition to
the physical mailing of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an in-
tranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employ-
ees by such means.
(g) Within 21 days after service by the Region, file with
the Regional Director for Region 7 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. October 16, 2019
______________________________________
John F. Ring, Chairman
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
______________________________________
Lauren McFerran, Member
_____________________________________
Marvin E. Kaplan, 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 vi-
olated 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 ac-
tivities.
WE WILL NOT fail and refuse to bargain collectively and
in good faith with SEIU Healthcare Michigan (the Union)
as the exclusive collective-bargaining representative of
our employees in the following unit by failing to continue
in effect the terms and conditions of the agreement
reached on November 28, 2018, to pay your accrued va-
cation pay and accrued sick pay:
All full-time and regular part-time cooks, maintenance
employees, medical attendants, laundry attendants and
food service workers employed at our facility located at
1640 Webb, Detroit, Michigan, but excluding guards
and supervisors as defined by the Act, and all other em-
ployees.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is necessary and relevant to the perfor-
mance of its functions as the collective-bargaining repre-
sentative of our unit employees.
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 honor and comply with the terms and condi-
tions of the November 28, 2018 agreement.
WE WILL make you whole for any loss of earnings and
other benefits, including by payment to you of your ac-
crued vacation pay and accrued sick pay, suffered as a re-
sult of our unlawful failure to abide by and apply to you
the terms of the November 28, 2018 agreement, plus in-
terest.
WE WILL furnish to the Union in a timely manner the
information it requested by certified mail and email since
about November 16, 2018.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and WE WILL file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
LAW-DEN NURSING HOME, INC.
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-233610 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.