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HIRSCH EX REL. NLRB

July 18, 1995

PETER W. HIRSCH, Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MICHAEL KONIG t/a NURSING CENTER AT VINELAND, Respondent.



The opinion of the court was delivered by: JEROME B. SIMANDLE

 SIMANDLE, District Judge:

 This matter is before the court pursuant to section 10(j) of the National Labor Relations Act ("Act"), as amended, 29 U.S.C. § 160(j), upon the petition for injunction by the Regional Director of the Fourth Region of the National Labor Relations Board ("Director"). The filing of this petition follows the issuance of an unfair labor practice complaint pursuant to section 10(b) of the Act, upon charges alleging Michael Konig t/a Nursing Center at Vineland ("Nursing Home") has engaged, and is engaging in, unfair labor practices within the meaning of sections 8(a)(5) and (1) of the Act, by refusing to bargain with the collective bargaining unit, certified by the Board in October, 1992, consisting of all full-time and regular part-time Licensed Practical Nurses (LPN's) at the Nursing Home's facility. The principal issues we must decide are: (1) whether there is reasonable cause to believe the Nursing Home engaged in an unfair labor practice; (2) whether the Supreme Court's decision in NLRB v. Health Care & Retirement Corp. of America, U.S. , 114 S. Ct. 1778, 128 L. Ed. 2d 586 (1994), provides an "extraordinary circumstance" which so alters the law in relation to this case that the Nursing Home is justified in refusing to bargain with the Union; and (3) whether 10(j) relief is just and proper. For the reasons stated herein, this court will grant the requested injunctive relief.

 I. Procedural History and Factual Background

 The Respondent is engaged in the operation of a long-term care nursing home located in Vineland, New Jersey. (GCX-1(c)). *fn1"

 Communication Workers of America, Local 1040, AFL-CIO ("Union"), filed a petition on June 8, 1992 to represent the Nursing Home's LPN's. (GCX-2). A hearing on this petition was held before Region Four Regional Director Peter Hirsch on July 8, 1992. (GCX-4). At this hearing, the Nursing Home alleged that three of the LPN's were supervisors within the meaning of the Act and, therefore, could not be part of the bargaining unit pursuant to sections 2(11) and 14(a) of the Act. (GCX-4 at 107). The Nursing Home did not contend the rest of the LPN's employed by it were supervisors. The Nursing Home's arguments regarding the supervisory status of three of the LPN's were found to be without merit. (GCX-3). Regional Director Hirsch issued a decision and direction of election dated September 17, 1992. (GCX-3). The collective bargaining unit was defined as:

 
All full-time and regular part-time Licensed Practical Nurses (LPNs) employed by Respondent at the Vineland facility, excluding all other employees, registered nurses, quality assurance employees, nurses' aides, clerical employees, housekeeping employees, dietary employees, laundry employees, guards and supervisors as defined in the Act.

 (GCX-3).

 An election was held among the members of the bargaining unit, and on October 27, 1992, the Communication Workers of America was certified as the exclusive bargaining representative for the LPN's of the Nursing Center at Vineland. Sometime after November of 1992, negotiations between the Union and the Nursing Home for a collective bargaining agreement began. (Tr. 25). Apparently, these negotiations broke off while the parties participated in an unfair labor practice hearing regarding different issues. Following the completion of this hearing on March 21, 1994, the Nursing Home's attorney, Stuart Bochner, and the Union's principal staff representative, Robert Yaeger, with assistance from a federal mediator, agreed to resume negotiations on April 21 and 28, 1994 and May 4, 1994. (Tr. 25-28). However, none of these planned meetings took place.

 Two days before the first bargaining session was scheduled to occur, Mr. Bochner notified Mr. Yaeger that he needed to cancel because he was scheduled to appear as a witness in federal district court in New Haven, Connecticut, on that same date. (GCX-7). One day prior to the second scheduled negotiation session, Mr. Bochner's secretary telephoned Mr. Yaeger to tell him that Mr. Bochner would be unable to attend; no reason was given for Mr. Bochner's unavailability. (Tr. 30). Mr. Yaeger received a faxed letter one day prior to the final scheduled session informing him that the meeting was canceled because the Nursing Home had decided to retain new legal counsel. (GCX-8).

 On May 6, 1994, David Lew, the Nursing Home's new attorney, informed the Union that he would be the Nursing Home's new bargaining agent. (GCX-10). Mr. Lew stated that he needed several weeks to obtain and review the Nursing Home's files, and then negotiations could resume. (Id.). Having failed to hear from Mr. Lew by June 2, 1994, Mr. Yaeger wrote him a letter stressing the need to resume bargaining as soon as possible. The Union's attorney, Lisa Morowitz, made follow-up calls to Mr. Lew on June 3 and 10, 1994 to reiterate the Union's request for the resumption of bargaining. Mr. Lew informed Ms. Morowitz that he had not yet received the files from Mr. Bochner. He also stated that he needed time to review the impact that NLRB v. Health Care & Retirement Corp. of America, U.S. , 114 S. Ct. 1778, 128 L. Ed. 2d 586 (1994), decided on May 23, 1994, might have on the bargaining unit. (Tr. 31-32). *fn2"

 Ms. Morowitz again called Mr. Lew on July 1, 1994 and was informed that the Nursing Home was of the opinion, based on the Supreme Court's decision, that there was no obligation to bargain with the Union because LPN's were supervisors under section 2(11) of the Act. *fn3" Shortly thereafter, on July 18, 1994, the Regional Director filed a complaint with the Board alleging that the Respondent had violated sections 8(a)(5) and (1) of the Act by failing and refusing to bargain with the exclusive bargaining representative. (GCX-1(c)).

 A hearing on this complaint was held before Administrative Law Judge (ALJ) George Aleman on February 6 and 7, 1995. (Tr. 1-285). ALJ Aleman issued a written decision on May 12, 1995, in which he concluded that the Nursing Home engaged in unfair labor practices affecting commerce within the meaning of sections 8(a)(5) and (1) of the Act. (ALJ dec. at 8-9). In specific, the ALJ concluded that the Nursing Home's refusal to bargain and breaking off of negotiations constituted an unfair labor practice within the meaning of the Act. Accordingly, the ALJ ordered the Nursing Home to take affirmative actions necessary to effectuate the policies of the Act, and to cease and desist from refusing to bargain in good faith by refusing to meet with the Union at reasonable times. (ALJ Dec. at 9).

 The Nursing Home appealed ALJ Aleman's decision, and the case was transferred to the NLRB for final determination. Briefing by the parties was completed on June 9, 1995 before the Board.

 II. Legal Analysis

 A. Scope of Review Under Section 10(j) of the NLRA

 With the passage of the Taft-Hartly Amendments of 1947, Congress enacted Section 10(j) of the Act, which provides:

 
The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

 29 U.S.C. § 160(j).

 Section 10(j) provides that after issuance of a complaint alleging a violation of any section of the Act, the Board can petition an appropriate district court for temporary equitable relief. "Interim relief may be granted without the showing of irreparable harm and a likelihood of success on the merits . . . ." Kobell v. Suburban Lines, 731 F.2d 1076, 1078 (3d Cir. 1984). A district court must make two determinations when deciding whether interim relief should be ordered: (1) whether there is ...


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