Paksn, Inc. as joint and/or single employer with Diyavilla, Inc. d/b/a Diyamonte Post Acute Care Cen

National Labor Relations Board - Unpublished Board Decisions

Jul 20, 2015

20-CA-139801 (N.L.R.B. Jul. 20, 2015)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
PAKSN, INC., as a Joint and/or Single
Employer with DIYAVILLA, INC. d/b/a
DIYAMONTE POST ACUTE CARE CENTER
and Case 20-CA-139801
SEIU-UHW WEST
DECISION AND ORDER
Statement of the Case
On March 4, 2015, Paksn, Inc., as a joint and/or single employer with Diyavilla,
Inc. d/b/a Diyamonte Post Acute Care Center (the Respondent), SEIU-UHW West (the
Union), and the General Counsel of the National Labor Relations Board entered into a
Formal Settlement Stipulation, subject to the Board’s approval, providing for the entry of
a consent order by the Board and a consent judgment by any appropriate United States
Court of Appeals. The parties waived all further and other proceedings before the
Board to which they may be entitled under the National Labor Relations Act and the
Board’s Rules and Regulations, and the Respondent waived its right to contest the entry
of a consent judgment or to receive further notice of the application therefor.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.
The Formal Settlement Stipulation is approved and made part of the record, and
the proceeding is transferred to and continued before the Board in Washington, D.C.,
for the entry of a Decision and Order pursuant to the provisions of the Formal
Settlement Stipulation.
Based on the Formal Settlement Stipulation and the entire record, the Board
makes the following
Findings of Fact
1. The Respondent’s business
At all material times, Paksn, Inc. (Paksn), a corporation with its principal office
and place of business located in Vacaville, California, has been engaged in the
business of providing services to and operating nursing care facilities, including
Diyavilla, Inc. d/b/a/ Diyamonte Post Acute Care Center.
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During the 12-month period ending December 31, 2014, Paksn, in conducting its
business operations described above, received gross revenue in excess of $100,000.
During the same period, Paksn received goods valued in excess of $5000 from
points directly outside the State of California.
Based on the facts set forth above, Paksn is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act, and has been a healthcare
institution within the meaning of Section 2(14) of the Act.
At all material times, Diyavilla, Inc. (Diyavilla), a California corporation, has been
engaged in the operation of a skilled nursing home facility called Diyamonte Post Acute
Care Center, located in Millbrae, California.
During the 12-month period ending December 31, 2014, Diyavilla, in conducting
its business operations described above, received gross revenue in excess of
$100,000.
During the same period, Diyavilla purchased and received goods and supplies, at
its Millbrae, California facility, valued in excess of $5000 directly from outside the State
of California.
Based on the facts set forth above, Diyavilla is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has been a
healthcare institution within the meaning of Section 2(14) of the Act.
At all material times, Paksn and Diyavilla have been affiliated business
enterprises with common officers, ownership, directors, management, and supervision;
have formulated and/or administered a common labor policy; have shared common
premises and facilities; have provided services for and made sales to each other; have
interchanged personnel with each other; and have interrelated operations with common
insurance and support services. Based on the above operations, Paksn and Diyavilla
constituted a single integrated business enterprise and a single employer within the
meaning of the Act.
In the alternative, at all material times, Paksn has possessed and exercised
direct control over the labor relations policy of Diyavilla, and determined or co-
determined with Diyavilla, essential terms and conditions for employees at Diyavilla.
Based on these operations, Paksn and Diyavilla have been joint employers of the
employees of Diyavilla.
On about February 12, 2014, the Respondent purchased the business of A&C
Healthcare Services, Inc. (A&C) in a bankruptcy proceeding and with full knowledge and
acceptance of a Board decision and court judgment against A&C as the successor
employer to Pleasant Care. See A&C Healthcare Services, Inc., 356 NLRB No. 100
(2011), enfd. 518 Fed.Appx. 533 (9th Cir. 2013). Since the purchase of A&C, the
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Respondent has continued to operate the business of A&C in basically unchanged form,
and has employed as a majority of its employees individuals who were previously
employees of A&C. Based on these operations, the Respondent has continued the
employing entity and is a successor to A&C.
2. The labor organization involved
SEIU-UHW West (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
ORDER
Based on the above findings of fact, the Formal Settlement Stipulation, and the
entire record, and pursuant to Section 10(c) of the National Labor Relations Act, the
National Labor Relations Board orders that the Respondent, Paksn, Inc. as joint and/or
single employer with Diyavilla, Inc. d/b/a Diyamonte Post Acute Care Center
(Respondent), Millbrae, California, its officers, agents, successors, and assigns shall
A. Cease and desist from
(1) Failing or refusing to bargain in good faith with the Union as the exclusive
collective-bargaining representative of employees in the unit, which includes all
employees employed in classifications covered by the collective-bargaining agreement
effective October 1, 2006, through June 15, 2008, between the Union and Pleasant
Care at 33 Mateo Avenue, Millbrae, California; excluding all other employees, guards
and supervisors as defined by the Act (the Unit).
(2) Delaying in providing the Union with information it requests that is relevant
and necessary to its role as the exclusive collective-bargaining representative of
employees in the Unit.
(3) In any like or related manner interfering with, restraining or coercing
employees in the exercise of their Section 7 rights.
B. Take the following affirmative action necessary to effectuate the policies of
the Act.
(1) Upon request, bargain collectively with the Union as the exclusive
representative of unit employees with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an agreement is reached, embody such
agreement in a signed document.
(2) Within 14 days of service by the Region, post in prominent places around the
Respondent’s facilities at 33 Mateo Avenue, Millbrae, California, copies of the attached
Notice marked Appendix A. Copies of the notice, on forms provided by Region 20, after
being signed by the Respondent’s authorized representative, shall be posted for a
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period of 60 days, in conspicuous places, including all places where it normally posts
notices to employees. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or internet site, and/or
by other electronic means, if the Respondent customarily communicates with its
employees by such means. Responsible steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by any other material.
(3) Within 21 days of the issuance of the Board’s Order, file with the Regional
Director for Region 20 of the Board, a sworn affidavit from a responsible official
describing with specificity the manner in which the Respondent has complied with the
terms of the Board’s Order, including the locations of the posted documents.
Dated, Washington, D.C., July 20, 2015
_____________________________________
Kent Y. Hirozawa, Member
_____________________________________
Harry I. Johnson, III, Member
_____________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PURSUANT TO A STIPULATION PROVIDING FOR A BOARD ORDER
AND A CONSENT JUDGMENT OF AN APPROPRIATE
UNITED STATES COURT OF APPEALS
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT refuse to bargain in good faith with SEIU-UHW West (the Union) as the
exclusive representative of our employees in the following unit:
All employees in classifications covered by the collective-bargaining agreement
effective October 1, 2006, through June 15, 2008, between the Union and
Pleasant Care at 33 Mateo Avenue, Millbrae, California; excluding guards and
supervisors as defined by the Act.
WE WILL NOT delay in providing the Union with requested information that is relevant
and necessary to perform its duty as the collective-bargaining representative of
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed to them by Section 7 of the Act.
WE WILL bargain collectively with the Union as the exclusive representative of the
employees in the unit described above with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if an agreement is reached, embody
such agreement in a signed document.
PAKSN, INC., as Joint and/or Single Employer
with DIYAVILLA, INC. d/b/a
DIYAMONTE POST ACUTE CARE CENTER
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The Board’s decision can be found at www.nlrb.gov/case/20-CA-139801 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.