Victoria Health Care Center

National Labor Relations Board - Board Decisions

Nov 18, 2010

356 N.L.R.B. 154 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 154
Wayneview Care Center and Victoria Health Care
Center and SEIU 1199, New Jersey Health Care
Union. Cases 22–CA–26987, 22–CA–26988, 22–
CA–27119, and 22–CA–27365
November 18, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On August 26, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB 1089.1 Thereafter, the
Respondents jointly filed a petition for review in the
United States Court of Appeals for the District of Co-
lumbia Circuit, and the General Counsel filed a cross-
application for enforcement. On June 17, 2010, the
United States Supreme Court issued its decision in New
Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that
under Section 3(b) of the Act, in order to exercise the
delegated authority of the Board, a delegee group of at
least three members must be maintained. Thereafter, the
court of appeals remanded this case for further proceed-
ings consistent with the Supreme Court’s decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.2
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions and to adopt the recommended Order to the extent
and for the reasons stated in the decision reported at 352
NLRB 1089 (2008), which is incorporated here by refer-
ence. 3
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Consistent with the Board's general practice in cases remanded
from the courts of appeals, and for reasons of administrative economy,
the panel includes the remaining member who participated in the origi-
nal decision. Furthermore, under the Board’s standard procedures
applicable to all cases assigned to a panel, the Board Members not
assigned to the panel had the opportunity to participate in the adjudica-
tion of this case at any time up to the issuance of this decision.
Member Pearce is recused and has taken no part in considering this
case.
3 In accordance with our decision in Kentucky River Medical Center,
356 NLRB 6 (2010), we modify the judge’s recommended remedy by
requiring that backpay and other monetary awards shall be paid with
interest compounded on a daily basis. Also, we shall modify the
judge’s recommended Order to provide for the posting of the notice in
accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons
The prior decision adopted the judge’s findings that
Respondents Wayneview Care Center and Victoria
Health Care Center violated Section 8(a)(3), (5), and (1)
by locking out their employees. We reaffirm that deci-
sion and emphasize four points.
First, the Respondents did not argue that the lockouts
were lawful “offensive” lockouts for the sole purpose of
pressuring the Union to accept a legitimate bargaining
position. See Allen Storage & Moving Co., 342 NLRB
501, 501 (2004). Accordingly, we need not rely on the
judge’s finding that Respondent Wayneview’s lockout
was unlawful under Dayton Newspapers, 339 NLRB
650, 656–658 (2003), enfd. in rel. part 402 F.3d 651 (6th
Cir. 2005) (finding a lockout unlawful where the em-
ployer never clearly communicated the conditions it
would accept to end the lockout).
Second, we agree with the judge, for the reasons stated
in her decision, that the Respondents violated Section
8(a)(5) and (1) by locking out their employees in order to
coerce the Union to accept an unlawful, unilaterally im-
plemented final offer. See Royal Motor Sales, 329
NLRB 760, 777 fn. 51 (1999), enfd. 2 Fed. Appx. 1
(D.C. Cir. 2001).
Third, we agree with the judge’s finding that the Re-
spondents failed to show that either the Wayneview
lockout or the Victoria lockout was a lawful “defensive”
lockout reasonably necessary to ensure continued patient
care. The judge discredited the testimony of the Re-
spondent Wayneview’s witness that she had made a 2-
week commitment to hire temporary replacements for
potential strikers. Similarly, there is no evidence of any
such commitment to replacement workers at Victoria.
Furthermore, there is no evidence that the Union was
planning another strike or further picketing at Victoria or
that the Union would not adhere to its decision to limit
concerted activity at Wayneview to 1 day of informa-
tional picketing during employees’ nonworking time.
Even if additional activity had been planned at either
facility, the Union would have been required by Section
8(g) of the Act to give 10 days’ advance notice (a legal
obligation the Union had fully complied with in relation
to the initial activity). Under these circumstances, the
Respondents have failed to show a legitimate and sub-
stantial business justification for the lockouts.
Fourth, even if the lockouts had been lawful at their
inception, beginning September 6, 2005, at Wayneview
and shortly before September 6 at Victoria, the Respond-
ents began allowing some employees but not others to
return to work. The lockouts thus became partial lock-
stated in his dissenting opinion in J. Picini Flooring, Member Hayes
would not require electronic distribution of the notice.
356 NLRB No. 30

WAYNEVIEW CARE CENTER 155
outs. As found by the judge, the Respondents failed to
show a legitimate and substantial business justification
for reinstating some employees, but not others. See
Field Bridge Associates, 306 NLRB 322, 334 (1992),
enfd. 982 F.2d 845 (2d Cir. 1993), cert. denied 509 U.S.
904 (1993). We therefore agree with the judge that the
Respondents’ partial lockouts were unlawful. 4
AMENDED REMEDY
Respondent Wayneview, having unlawfully suspended
and locked out employees, and Respondent Victoria,
having unlawfully locked out employees and refused to
reinstate economic strikers upon their unconditional offer
to return to work, must offer those employees reinstate-
ment and make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from the
date of the suspension, lockout, or refusal to reinstate to
the date of a proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus daily compound interest as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010). In addition, Respondent Wayneview, having
unlawfully implemented new terms and conditions of
employment, and Respondent Victoria, having unlawful-
ly withdrawn benefits and uniform allowances and un-
lawfully implemented new terms and conditions of em-
ployment, must make the affected employees whole for
any loss of earnings and other benefits resulting from
that unlawful conduct in the manner prescribed in Ogle
Protection Services, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus daily compound interest as
prescribed in Kentucky River, supra. Respondent Victo-
ria must also reimburse employee Geraldine Morgan
(whom the Respondent unlawfully treated as an on-call,
“no-frills” employee without benefits after the lockout)
for any expenses resulting from the withdrawal of her
health benefits, as set forth in Ogle, supra, and Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), affd.
661 F.2d 940 (9th Cir. 1981), plus daily compound inter-
est as prescribed in Kentucky River, supra.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified in 352 NLRB 1089 and as further modified
below, and orders that the Respondents, Wayneview
Care Center, Wayne, New Jersey, and Victoria Health
Care Center, Matawan, New Jersey, their officers,
agents, successors, and assigns, shall take the action set
forth in the recommended Order as modified.
4 Having found the lockouts unlawful for the above reasons, we need
not rely on the judge’s finding that Respondent Wayneview’s lockout
was motivated by antiunion animus.
1. Substitute the following for section A, paragraph
2(g).
“(g) Within 14 days after service by the Region, post at
its Wayne, New Jersey facility copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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 Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since early August 2005.”
2. Substitute the following for section B, paragraph
2(h).
“(h) Within 14 days after service by the Region, post at
its Matawan, New Jersey facility copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
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.”
6 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.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 156
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since June 27, 2005.”