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Barker v. Regal Health and Rehab Center

May 13, 2009

JOSEPH A. BARKER, REGIONAL DIRECTOR OF REGION 13 OF THE NATIONAL LABOR RELATIONS BOARD, FOR AND ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
REGAL HEALTH AND REHAB CENTER, INC., RESPONDENT.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Petitioner Joseph A. Barker, Regional Director for Region 13 of the National Labor Relations Board (the "Director"), seeks injunctive relief pursuant to § 10(j) of the National Labor Relations Act (the "Act"), 29 U.S.C. § 160(j), against respondent Regal Health and Rehab Center, Inc. ("Regal"), pending the resolution of charges currently before the National Labor Relations Board (the "Board"). For the reasons explained below, the petition is granted.

BACKGROUND

In January, February, and March 2008, the Service Employees International Union Local 4 (the "Union") filed three charges with the Board alleging that Regal was engaging in unfair labor practices. Specifically, the Union alleged that Regal violated §§ 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), which prohibit employers from interfering with employees' self-organizational rights and from discriminating against employees to discourage membership in a union.

On May 5, 2008, the Director consolidated the cases and issued a consolidated complaint and notice of hearing. From May 27, 2008 through May 30, 2008 and on June 25 and 26, 2008, Administrative Law Judge ("ALJ") Margaret G. Brakebusch conducted an evidentiary hearing on the charges. The ALJ issued her Decision on October 6, 2008. The following facts are drawn from the transcripts of the administrative hearing, additional exhibits submitted to the court by the parties, and the ALJ's summary of the facts.

Regal is a corporation that operates a nursing home in Oak Lawn, Illinois. Its owner and president is Michael Lerner. Regal's facility comprises two floors and provides long-term, full-time care to approximately ninety patients. Health care is administered primarily by Licensed Practical Nurses ("LPNs") and Certified Nursing Assistants ("CNAs"). The LPNs provide nursing care and administer medication to the patients and document that care. The CNAs assist patients with daily activities such as moving, bathing, eating, and getting dressed. They also check patients' vital signs and report any changes in patients' condition to the appropriate LPN. In November 2007, there were thirteen LPNs at Regal. At the time, their direct supervisor was Durodola Adewolu, the Director of Nursing, who had assumed that position in August 2007.

The Union represents eighty percent of Regal's employees, including housekeeping, laundry, and dietary employees and the CNAs. The LPNs are essentially the only group of employees at Regal who were not represented by the Union prior to November 2007. In November 2007, the LPNs began attempting to unionize, and several of them testified at the administrative hearing about their union activity.

Union Activity of Regal's LPNs Kalea Williams

In mid-November 2007, Kalea Williams, who was an LPN at Regal from July 2007 until her termination on March 27, 2008, contacted the Union about representation for the LPNs. Williams was concerned about the LPNs' working conditions and pay. After talking with the Union representative, Williams received union authorization cards to distribute to other LPNs. Williams signed an authorization card on November 15, 2007, and she collected signed authorization cards from ten other LPNs between November 15 and November 18, 2007. Shortly thereafter in November, Williams submitted the cards to the Union.

Williams and the union representative arranged a union meeting for LPNs, which took place on December 6, 2007 at a McDonald's restaurant near the nursing home and lasted for about an hour. The meeting was attended by a union representative and LPNs Williams, Dianne Rounds, Michael Thurmond, Shanina Mitchell, and Dianne Gavin. During the meeting, the employees discussed working conditions, the reasons they wanted to be unionized, and the benefits of unionization. They also discussed their boss, Adewolu; Williams testified that she discussed (unspecified) prior allegations of sexual harassment against Adewolu.

When Williams reported to work on December 14, 2007, she spoke with Adewolu in his office. According to Williams, Adewolu told her that he had heard that his name was mentioned at a meeting of the nurses and asked her why she had accused him of sexually harassing someone. Williams replied that it wasn't personal and that she was just raising one of the issues that the employees had with Regal and that "he was one of the issues." (Tr. 55.)

On December 19, 2007, at a Dunkin' Donuts store near Regal's facility, Williams had a second meeting with a union representative. Another LPN, Lavern Harper, also attended this meeting. Williams and Harper both testified that as they were leaving the nursing home, Adewolu asked if they were going to a union meeting, and Williams simply responded that they were going to lunch.

About a week after her December 14 discussion with Adewolu, Williams had another discussion with Adewolu in his office.

Adewolu asked her if it was true that the LPNs were trying to unionize, and Williams confirmed that they were. Adewolu told her that it was illegal for the LPNs to unionize because they were supervisors and could "write people up." Williams replied that she knew her rights, that the LPNs could unionize, and that they were not supervisors because they could not discipline employees. Adewolu told Williams that Michael Lerner would fire "all of them" if they continued to pursue unionization. Williams replied that if Lerner fired her, she would be "sitting at home at Mr. Lerner's expense." (Tr. 57.)

Lavern Harper

Lavern Harper, who worked for Regal as an LPN from January 1, 2007 until her termination on January 2, 2008, signed a union authorization card on November 17, 2007. She testified that one day in late November 2007, she and another LPN, Angela Bibbs, were standing at the nursing station when Adewolu approached them. He stated that he liked them and did not want them to lose their jobs and explained that he did not want them to join the Union, and if they did, they would be fired. When Harper pretended that she did not understand, Adewolu added that he was aware of the Union, that Lerner would not tolerate it, and that anyone involved in the Union would be fired. Harper and Bibbs asked Adewolu, evidently in jest, if he wanted them to be "spies." Adewolu, possibly missing the joke, responded affirmatively and told them that there would be "something in it" for them. When they asked him sarcastically if their compensation would be another sixteen straight hours, Adewolu walked away. (At the hearing, Harper was asked to explain this comment, and she testified that the nurses had been working sixteen-hour shifts without overtime pay.) (Tr. 190-91.)

During the week of December 6, 2007, Harper spoke with Adewolu again. Harper was standing with LPN Joanne Harris at the nurses' station when Adewolu approached her and said that he knew about the Union and that "you guys" were "out to get" him. She asked him what he was talking about (because she was aware of the December 6 union meeting but had not been able to attend). He told her not to "play dumb" with him and that he knew she was aware of the meeting. Adewolu told her that he knew that Williams, Thurmond, and Rounds had attended the meeting and threatened that he would terminate their employment for having done so. Harper responded that they have a right to have a union, and Adewolu replied, "Not in Illinois." Harper said that that might be true in Adewolu's home country (Nigeria), but not in the United States. Harper also observed that Adewolu had come to the United States "for equality." Adewolu simply repeated his earlier comment that Lerner would not tolerate anyone being in a union and that the employees would be terminated. (Tr. 193.)

In mid-December 2007, Harper had a discussion with Adewolu about scheduling and staffing levels. Harper asked Adewolu if he would assign her eight-hour shifts instead of sixteen-hour shifts, and he told her to be patient because he was going to fire some nurses and hire three to four new nurses. He stated that he was going to fire Michael Thurmond because Thurmond "whine[d] like a little girl"; Kalea Williams because Williams "was a pain to his side"; and Dianne Rounds because when he called Rounds to come in to work early, "she was always asleep as if she [were] still growing." (Tr. 194.)

On December 19, 2007, Harper attended the aforementioned union meeting at Dunkin' Donuts with Kalea Williams. Some time near the end of December, Harper had another conversation with Adewolu about the Union. They had worked late and were in Adewolu's car driving to a restaurant. They discussed changes that they would like to see made at Regal. Adewolu remarked that first they needed to "get this union thing out [of] the way" and that the Union was "pretty bad." He also said that the employees should not be involved with the Union because Lerner would fire employees for their involvement. Harper told Adewolu that the employees had a right to have a union, and he responded, "No, this is just really bad. It needs to end." (Tr. 196-97.)

Dianne Rounds

Dianne Rounds was employed as an LPN at Regal from August 17, 2006 until her termination on January 3, 2008. On November 16, 2007, Rounds signed a union authorization card that had been given to her by Williams. Rounds also attended the December 6 union meeting at McDonald's.

Michael Thurmond

Michael Thurmond worked as an LPN at Regal from January 7, 2007 until his termination on January 7, 2008. On November 18, 2007, Thurmond signed a union authorization card that Williams had given him. On December 6, 2007, Thurmond attended the union meeting at McDonald's. He recalls that the employees and the union representative discussed desired workplace changes. Thurmond also recalled expressing his opinion that Adewolu did not like male employees.

On December 11, 2007, Thurmond telephoned Adewolu to ask if he could work overtime. During the conversation, Adewolu asked Thurmond, "What's this I hear that [you went to] McDonald's and told the Union rep that I don't like male workers?" Thurmond laughed, and Adewolu said that he didn't understand why the nurses wanted the union and that it was just a waste of time. Adewolu also told Thurmond that no overtime work was available.

Some time between December 25, 2007 and the end of the year, Thurmond told three newly-hired nurses his opinion that there were problems at Regal's facility and that the Union could help the nurses get the problems resolved. Thurmond asked the three nurses if they would be willing to sign union authorization cards, and they said yes, but he did not have any cards with him at the time.

On January 4, 2008, Adewolu called Thurmond into his office and asked him if he wanted to work some overtime hours. Thurmond said that he did not, and when asked why, explained that Regal did not pay time-and-a-half. Adewolu laughed and asked Thurmond why employees were crying for the union as if a union would make any difference. Adewolu also asked Thurmond if he knew that he could be "blackballed" because ninety percent of the [area] nursing homes were Jewish-owned. (Tr. 312-13.)

Staff Meeting and Terminations

On December 20, 2007, Adewolu and the Assistant Administrator of the facility, Sanuelle Williams ("Administrator Williams"), conducted a staff meeting that approximately sixty to seventy-five employees attended. At the meeting, Administrator Williams announced that Jeraldine Cheatem (a "team leader" CNA and Union steward for the CNAs) would no longer prepare the monthly work schedule for CNAs and that Rhonda White (the Quality Assurance Nurse, who supervises CNAs) would assume that responsibility. Administrator Williams also informed the employees that the LPNs would now be required to prepare daily schedules and patient assignments for the CNAs.

Michael Thurmond testified that subsequent to this staff meeting, he did not follow the instruction to prepare these schedules and assignments for the CNAs and was never disciplined for his failure to do so. Kalea Williams also testified that shortly after the staff meeting, Administrator Williams told her that because the LPNs were going to be responsible for the actions of the CNAs, the LPNs "had to start writing [the CNAs] up" (presumably for workplace infractions) or the licenses of the LPNs would be in jeopardy. (Tr. 61.) Thereafter, Kalea Williams did not initiate any discipline for a CNA and was never disciplined for her failure to do so.

On January 2 and January 3, 2008, Regal terminated the employment of Lavern Harper and Dianne Rounds, respectively. On January 7, 2008, Regal terminated the employment of Michael Thurmond. Kalea Williams's employment was terminated on March 27, 2008. The specific circumstances of those terminations are discussed infra in context of the ALJ's findings and conclusions.

The ALJ's Findings of Fact and Conclusions of Law

The ALJ's findings and conclusions regarding the five issues before her were as follows.

1) Whether the LPNs employed at Regal are "supervisors" within the meaning of the Act The ALJ stated that "[p]erhaps the most pivotal issue in this case [is] whether the LPNs are supervisors as defined by the [Act]." (ALJ Decision at 6.) The issue is pivotal because under the Act, supervisors cannot unionize. NLRB v. GranCare, Inc., 170 F.3d 662, 664-65 (7th Cir. 1999). A "supervisor" is defined as "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U.S.C. § 152(11). The burden of proving that an individual is a supervisor is on the party asserting such status. NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307, 1313 (7th Cir. 1998).

The ALJ found no evidence that the LPNs at Regal have the authority to hire, transfer, lay off, recall, promote, discharge, or reward any other employees, nor any evidence that they have the authority to set wage rates or evaluate other employees. Regal contended, however, that the LPNs have the authority to suspend, assign, discipline, direct, and adjust the grievances of other employees, and that LPNs use ...


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