Ley ex rel. National Labor Relations Board v. Wingate of Dutchess, Inc.

182 F. Supp. 3d 93, 2016 WL 1611598, 206 L.R.R.M. (BNA) 3151, 2016 U.S. Dist. LEXIS 54263
CourtDistrict Court, S.D. New York
DecidedApril 22, 2016
Docket15 CV 3982 (VB)
StatusPublished
Cited by2 cases

This text of 182 F. Supp. 3d 93 (Ley ex rel. National Labor Relations Board v. Wingate of Dutchess, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ley ex rel. National Labor Relations Board v. Wingate of Dutchess, Inc., 182 F. Supp. 3d 93, 2016 WL 1611598, 206 L.R.R.M. (BNA) 3151, 2016 U.S. Dist. LEXIS 54263 (S.D.N.Y. 2016).

Opinion

OPINION AND ORDER

Briccetti, Judge:

Rhonda P. Ley, Regional Director for Region 3 of the National Labor Relations Board (“Petitioner”), brings this action against respondent Wingate of Dutchess, Inc. (“Respondent”), pursuant to Section 10(j) of the National Labor Relations Act (“NLRA”), seeking a temporary injunction pending the final administrative disposition [96]*96by the National Labor Relations Board (“Board”). (Doc. # 47).

Petitioner seeks (i) an interim bargaining order, (ii) interim reinstatement of a terminated union activist, and (iii) an order requiring Respondent to read the Court’s order to its employees.

For the reasons set forth below, the petition is GRANTED.

The Court has jurisdiction pursuant to Section 10(j) of the NLRA. 29 U.S.C. § 160(j).

BACKGROUND

I. Procedural History

On October 1, 2014, 1199 SEIU United Healthcare Workers East (the “Union”) filed a petition to hold an election for union representation at Wingate of Dutchess, a nursing home in Fishkill, New York. On November 10, 2014, the Union filed with the Board an unfair labor practice charge alleging Respondent was engaging in unfair labor practices under Section 8(a)(1) and (3) of the NLRA. An election was held among eligible employees on November 12, 2014, and the Union received 60 votes, with 64 employees voting against the Union. The Union amended its unfair labor practice charge in December 2014, and again in January 2015. In February 2015, the Union filed a new.charge alleging Respondent was engaging in unfair labor practices. On March 31, 2015, the General Counsel of the Board consolidated the cases. On April 17, 2015, the General Counsel issued an amended consolidated complaint, and Respondent timely answered.

On May 22, 2015, Petitioner filed a petition for an injunction under Section 10(j) of the NLRA with this Court. (Doc. # 1). Following a conference on May 29, 2015, the Court declined to grant the requested injunctive relief, pending the result of the administrative proceeding before the Board’s Administrative Law Judge.- (Doc. # 30).1

In June 2015, the case was tried before Administrative Law Judge Mark Carissimi (“ALJ”). On November 16, 2015, the ALJ issued a decision (“ALJ Decision”) on the allegations of the amended consolidated complaint, largely finding in favor of the Union. On December 2, 2015, this Court held a conference and directed Petitioner to file an amended petition for an injunction under Section 10(j) of the NLRA. (Doc. # 44).

II. Alleged Unfair Labor Practices

The following facts are taken from the amended petition (Doc. #47), Petitioner’s memorandum of points and authorities in support of its petition (Doc. #47-2), Respondent’s memorandum of law in opposition (Doc. # 48), Petitioner’s reply brief in support of its amended petition (Doc. # 52), ALJ Carissimi’s November 16, 2015, decision (Doc. # 39-1), and the declarations and exhibits submitted in conjunction therewith.

A. Unfair Labor Practices Regarding the Unionization Campaign

Respondent’s nursing home employs approximately 160 people and provides care for approximately 160 residents.

Respondent’s owner, Wingate Healthcare Inc., also owns 18 other nursing facilities. In June 2014, the Union filed a petition for an election on behalf of certified nursing aides (“CNAs”) and licensed prac[97]*97tical nurses (“LPNs”), and unit aides at one of Respondent’s sister facilities, Win-gate of Ulster.

Clayton Harbby, the administrator of Wingate of Dutchess, was instructed'by Wingate Healthcare Inc.’s senior personnel to monitor the presence of union representatives or activity on Respondent’s property. During the week of July 7, 2014, Harbby asked some employees at Wingate of Dutchess, including a CNA named Geor-gann Allen, to go to the Ulster facility to share their experiences at the Dutchess facility and express the view that Wingate of Ulster did not need to unionize.2 Allen did not agree to Harbby’s request because she felt the employees at the Dutchess facility were “in the same boat as the people at Ulster.” (ALJ Decision at 6).

After the meeting with Harbby, Allen reported Harbby’s request to four colleagues. They began discussing certain points of dissatisfaction with Wingate, including their inability to afford health insurance and lack of job security. One employee, Sandra Stewart, asked Allen what they could do about these problems, to which Allen replied that she could contact the Union.

Two days later, Stewart reached out to the Union. Stewart and a Union representative discussed unionizing and the representative asked Stewart to circulate a list to employees to apply for the Union to represent them. Stewart obtained approximately 35 signatures and faxed it to the, Union.

At some point during the week after Harbby’s meeting with Allen, the director of nursing services, Ann Nelson, approached Allen about whether she would speak at the Ulster facility. Nelson apparently thought Allen had agreed to speak at Ulster, and Allen reiterated she felt the employees at the Dutchess facility “were in the same boat” as the employees at the Ulster facility, and accordingly, she would not speak to them. (ALJ Decision at 7).3

On July 14, 2014, Respondent posted a memo from Nelson to the nursing staff indicating it would introduce bonuses for perfect attendance for the period from July 18, 2014, through September 18, 2014,4

On July 23, 2014, Harbby and Nelson held a series of meetings with employees. Harbby told employees that Wingate at Dutchess did not need a union and predicted there would be layoffs and cutbacks due to the union election at the Ulster facility. Harbby informed the employees he would “stay at [a] hotel and sleep night and day to make sure that there was no union coming into his facility.” (ALJ Decision at 8).5 He also announced Wingate at Dutch-[98]*98ess would change its practice of issuing paychecks every two weeks to its previous practice of paying employees on a weekly basis.6

On July 25, 2014, a Union representative met with Allen and Stewart to discuss the organizing process. The Union representative gave them authorization cards and explained that if a majority of employees signed the cards in support of the Union, the Union would be able to bargain a contract with Respondent. Stewart then began soliciting employees to sign the cards in support of the Union.

In late July 2014, Nelson and Harbby instructed Stewart not to conduct union activities while employees were engaged in patient care. Nelson had received reports that Stewart was soliciting authorization card signatures while employees were in patients’ rooms or passing out medications. Harbby told Stewart she should educate herself to know what she was getting into.7

Beginning on August 8 and continuing through the November 12, 2014, election, union representatives and employee supporters occasionally gathered at a parking lot of a property adjacent to the Dutchess facility during shift changes to demonstrate support for the union.

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182 F. Supp. 3d 93, 2016 WL 1611598, 206 L.R.R.M. (BNA) 3151, 2016 U.S. Dist. LEXIS 54263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ley-ex-rel-national-labor-relations-board-v-wingate-of-dutchess-inc-nysd-2016.