Chester v. Grane Healthcare Co.

• Decision Date: 02 June 2011
• Docket Number: Civil Nos. 3:2010–225,3:2010–244.
• Citation: 797 F.Supp.2d 543
• Parties: Robert W. CHESTER, Regional Director of the NATIONAL LABOR RELATIONS BOARD for Region Six, for and on behalf of the National Labor Relations Board, Plaintiff, v. GRANE HEALTHCARE CO., and/or Ebensburg Care Center, LLC d/b/a Cambria Care Center, Single Employer, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

797 F.Supp.2d 543

Robert W. CHESTER, Regional Director of the NATIONAL LABOR RELATIONS BOARD for Region Six, for and on behalf of the National Labor Relations Board, Plaintiff,

v.GRANE HEALTHCARE CO., and/or Ebensburg Care Center, LLC d/b/a Cambria Care Center, Single Employer, Defendants.

Civil Nos. 3:2010–225

3:2010–244.

United States District Court, W.D. Pennsylvania.

June 2, 2011.

Patricia J. Daum, National Labor Relations Board, Pittsburgh, PA, for Plaintiff.

Richard J. Antonelli, John A. McCreary, Jr., Rebecca J. Dick–Hurwitz, Babst Calland Clements and Zomnir PC, Pittsburgh, PA, for Defendants.

MEMORANDUM

KIM R. GIBSON, District Judge.

This matter comes before the Court on Plaintiff's Motion to Hear and Decide Complaint for Injunction on Basis of the Record Developed Before Administrative Law Judge to be Supplemented by Just and Proper Evidence (Document No. 4) and Plaintiff's Motion to Hear and Decide Complaint for Injunction under Section 10(j) of the National Labor Relations Act, as Amended, on the Basis of the Record Developed Before Administrative Law Judge David Goldman to be Supplemented by Just and Proper Evidence (Document No. 19). The Court finds that an interim bargaining order shall issue, but an instatement order for Ms. Hagerich and Mr. Mulhearn shall not issue. The Court now GRANTS this motion in part, and DENIES it in part.

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Facts

The Court relies on the recitation of facts in the Decision of Administrative Law Judge David I. Goldman to explore the events leading up to the instant motions.¹ These cases involve a company, Grane Healthcare Co., that acquired a nursing home that for many years had been owned and operated by a county employer. Principals of the company established a new entity, Ebensburg Care Center, LLC, d/b/a Cambria Care Center for the purpose of operating the nursing home. The new employer hired most, but not all, of the employees who had worked for the nursing home when it was county-owned. The new employer refused to recognize or bargain with the two unions that represented employees at the county nursing home. The government alleges that the employer is a successor employer under National Labor Relations Board (Board) precedent, and that its refusal to recognize and bargain with the unions violates the National Labor Relations Act (Act). The government further contends that the employer's decision not to hire certain of county's employees—specifically, certain employees who were officials of one union and another employee who was active in attempting to assist her union in securing a meeting with the new owners—was unlawfully motivated in violation of the Act. Finally, the government alleges that the buyer of the nursing home (Grane Healthcare Co.), which assists in managing the nursing home, along with the operating entity (Ebensburg Care Center, LLC, d/b/a Cambria Care Center) it established, are a single employer under the Act's precedents.

On January 8, 2010, Local Union No. 1305, Professional and Public Service Employees of Cambria County a/w the Laborers' International Union of North America (Laborers or Local 1305) filed an unfair labor practice charge, amended May 24, 2010, against Grane Healthcare Co. (Grane) and/or Ebensburg Care Center LLC temporarily d/b/a Cambria Care Center (Cambria Care), docketed by Region 6 of the Board as Case 6–CA–36791.

On January 15, 2010, SEIU Healthcare Pennsylvania, CTW, CLC (SEIU) filed an unfair labor practice charge, amended May 24, 2010, against Grane and/or Cambria Care docketed by Region 6 of the Board as Case 6–CA–36803. On April 29, 2010, SEIU filed another charge, docketed by Region 6 as Case 6–CA–36915, which was amended by SEIU on June 30, 2010. On May 28, 2010, based on an investigation into the charge filed by the Laborers, the Board's General Counsel, by the Acting Regional Director of Region 6, issued a complaint and notice of hearing against Grane and Cambria Care alleging violations of the Act in Case 6–CA–36791, The complaint alleged that Grane and Cambria Care constituted a single employer within the meaning of the Act, and that they unlawfully failed and refused to recognize and bargain with the Laborers as the collective-bargaining representative of a bargaining unit of employees in violation of Section 8(a)(1) and (5) of the Act. The complaint further alleged that Respondents unlawfully refused to hire applicants Mark Mulhearn, Beverly Weber, Joseph Billy, and Sherry Hagerich, in violation of Section 8(a)(1) and (3) of the Act.

On July 1, 2010, the Board's Acting General Counsel, by the Regional Director for Region 6, issued an order consolidating Cases 6–CA–36803 and 6–CA–36915, and issued a second complaint against Grane and Cambria Care. Similar to the complaint issued in Case 6–CA–36791, the complaint in these consolidated cases alleged that Grane and Cambria Care constituted a single employer within the meaning of the Act, and alleged that Respondents unlawfully failed and refused to recognize SEIU as the collective-bargaining representative of a bargaining unit of employees, in violation of Section 8(a)(1) and (5) of the Act. The complaint further alleged that Respondents unlawfully unilaterally implemented a change in job duties in violation of Sections 8(a)(1) and (5) of the Act. Finally, the complaint alleged that Respondents unlawfully refused to hire applicant Roxanne Lamer, in violation of Sections 8(a)(1) and (3) of the Act.

By further Order issued July 1, 2010, the Board's Acting General Counsel, by the Regional Director for Region 6, ordered that Case 6–CA–36791 be consolidated with Cases 6–CA–36803 and 6–CA–36915. Respondents filed timely answers denying all violations of the Act. A hearing in these cases was conducted before Administrative Law Judge David I. Goldman on July 21–23, and August 16–19, 2010, in Ebensburg, Pennsylvania. Counsel for the General Counsel, the SEIU, and Respondent filed briefs in support of their positions by October 8, 2010.

This case came before this court on August 26, 2010, when Plaintiff, Robert W. Chester, Regional Director for Region Six of the National Labor Relations Board, for and on Behalf of the National Labor Relations Board, filed a complaint against Grane Healthcare Co. and/or Ebensburg Care Center LLC D/B/A Cambria Care Center, Single Employer (Document No. 1). On September 10, 2010, Plaintiff filed a Motion to Hear and Decide Complaint for Injunction on Basis of the Record Developed before Administrative Law Judge to be Supplemented by Just and Proper Evidence (Document No. 4). The Court held an evidentiary hearing to determine whether injunctive relief is “just and proper” on September 28, 2010. Following the hearing, Plaintiff filed a Motion to Hear and Decide Complaint for Injunction under Section 10(j) of the National Labor Relations Act, as amended, on the Basis of the Record Developed Before Administrative Law Judge David Goldman to be Supplemented by Just and Proper Evidence (Document No. 19). On October 1, 2010, Defendants filed a supplemental brief in opposition to Plaintiff's motion to hear and decide complaint for injunction. On October 4, 2010, the Court held an injunction hearing. On October 25, 2010, Defendants filed a brief in opposition to Plaintiff's motion to hear and decide complaint for injunction (Document No. 24). On November 19, 2010, Defendants filed Defendants' post-hearing memorandum (Document No. 33). On November 19, 2010, Plaintiff filed a brief in support of complaint, for injunctive relief pursuant to Section 10(j) of the National Labor Relations Act (Document No. 34).

On December 16, 2010, Administrative Law Judge David I. Goldman issued his Decision and Recommended Order in the underlying consolidated unfair labor practice cases, 6–CA–36791, 6–CA–36803 and 6–CA–36915. Administrative Law Judge Goldman found that Respondent Grane Healthcare Co. and Respondent Ebensburg Care Center LLC (a single employer, collectively referred to as Respondent in that matter) engaged in certain unfair labor practices. He further found that they are joint and severally liable for the unfair labor practices found and must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Sections 8(a)(5) and (1) by failing and refusing to bargain with Local 1305 as the collective-bargaining representative of an appropriate bargaining unit of employees (described above), Administrative Law Judge Goldman ordered that Respondent shall recognize, and, upon request, bargain with Local 1305 as the exclusive representative of the unit employees and, if an understanding is reached, embody the understanding in a signed agreement.

Having found that Respondent violated Sections 8(a)(3) and (1) of the Act by refusing to hire Mark Mulhearn, Sherry Hagerich, Beverly Weber, Joseph Billy, and Roxanne Lamer, Administrative Law Judge Goldman ordered that Respondent shall offer them instatement to the positions for which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed absent the discrimination against them. Administrative Law Judge Goldman ordered that Respondent shall make these individuals whole for any loss of earnings and other benefits that they may have suffered as a result of the discrimination against them, computed on a quarterly basis, in the manner prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus daily compound interest as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). Administrative Law Judge Goldman ordered that Respondent shall remove from its files any reference to the unlawful refusal to hire Mulhearn, Hagerich, Weber, Billy, and Lamer, and, within three days thereafter, notify each of them in writing that this has been done and that the refusals to hire will...