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KOBELL v. BEVERLY HEALTH & REHABILITATION SERVS.

April 4, 1997

GERALD KOBELL, Regional Director for Region Six of the National Labor Relations Board, Plaintiff
v.
BEVERLY HEALTH AND REHABILITATION SERVICES, INC., et al., Defendants



The opinion of the court was delivered by: SMITH

 SMITH, District Judge

 I. Introduction

 Before the court in this labor controversy is a Petition for Injunction filed by Gerald Kobell, the Regional Director for Region Six of the National Labor Relations Board (hereinafter "the Board") against Beverly Health and Rehabilitation Services, Inc., some of its subsidiaries and twenty of its health care facilities in the Commonwealth of Pennsylvania (hereinafter collectively referred to as Beverly). The petition seeks temporary relief pursuant to § 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(j), pending the resolution of unfair labor practice charges filed with the Board by employees of the twenty Beverly health care facilities. I conducted an evidentiary hearing on February 19 and 20, 1997, and the following constitute my findings of fact and conclusions of law.

 II. Facts

 I previously addressed cross-motions for partial summary judgment in this case and determined that the Board's legal theory was substantial and not frivolous. See dkt.no. 67. An excerpt from my memorandum disposing of those cross-motions supplements the record from the hearing and sets forth certain undisputed facts which are necessary to the resolution of the instant motion for injunctive relief.

 
Beverly owns and operates over 750 health care facilities nationwide which provide care for elderly or infirm individuals. The service and maintenance employees at twenty of these health care facilities in Pennsylvania are unionized. *fn1" Dkt.no. 19, P3. The most recent collective bargaining agreements [CBAs] expired on November 30, 1995, except at two of the facilities where the agreements expired on December 31, 1994. Dkt.no. 19, P 5.

 Dkt.no. 67, at 2-3.

 The alleged unfair labor practices occurred at some, but not all, of the health care facilities. Dkt.no. 77, at 27-32; pl.exh. 1. The predominant unfair labor practices were the removal of union bulletin boards and the denial of employee access at the health care facilities to the union representatives. Pl.Exh. 1.

 Thereafter the unions voted to authorize strikes at fifteen of the facilities.

 
On or about March 15, 1996, the unions gave notice to the fifteen facilities of their intent to engage in an unfair labor practice strike commencing at 7:00A.M. on Friday, March 29, 1996. The notice specifically stated that the written notice was being served as required by § 8(g) of the NLRA, enacted as part of the 1974 Nonprofit Hospital Amendments to the Labor Management Relations Act. 29 U.S.C. § 158(g). Dkt.no. 18, exh. A.
 
On March 27, 1996, the unions gave an additional notice to the fifteen facilities, this time advising of their intent to extend the commencement of the strike from Friday, March 29, 1996 at 7:00 A.M. to Monday, April 1, 1996 at 6:00A.M. It is undisputed that Beverly did not consent, either orally or in writing, to this 71 hour extension.
 
The unions were advised by Beverly that the extension notice failed to fulfill the literal statutory requirements set forth in § 8(g), and that it would consider unlawful any strike held pursuant to the seventy-one hour extension notice. Despite Beverly's lack of consent, a strike began on April 1, 1996 at the fifteen facilities, and continued until April 4, 1996 at about 7:00 A.M.

 Dkt.no. 67, at 3-4.

 The union notices to Beverly of its intent to strike at each of the fifteen facilities state that the "union shall begin to engage in a strike, picketing and other concerted refusal to work activities to protest unfair labor practices committed by Beverly...." Dkt.no. 76, exh. A (emphasis added). The extension notices from the union also state that "the Union shall engage in an unfair labor practice strike...." Id., exh. B (emphasis added). Beverly acknowledged the union's characterization of its activity as an unfair labor practice strike when it responded to the union that it considered the union's notice of the 71 hour extension defective. Id., exh. C.

 After the strike concluded on April 4, 1996, Beverly refused to reinstate many of the striking employees, despite an unconditional offer by all of them to return to work. Beverly reinstated to their former positions a total of 290 employees, from April 1996 to January 1997. Dkt.no. 77, at 62. Another 237 employees were recalled, but not to their former positions. Many of the employees were recalled to part-time capacities in different positions, or to different shifts from those they had worked in before the strike. Dkt.no. 77, at 61. As of January 1997, 66 employees had not been reinstated and a total of 115 employees had either quit or been fired. Dkt.no. 77, at 60 - 66; pl. exh. 14.

 
On May 9, 1996, the Board issued an order consolidating all of the unfair labor practice charges against Beverly, and a consolidated complaint and notice of hearing were filed with the agency. Dkt.no. 1, P5(a). The Board issued an amended consolidated complaint on June 19, 1996. Id., P 5(b).
 
On July 8, 1996, the Board initiated this action by filing a consolidated Complain and Petition for Injunction Under Section 10(j) of the NLRA, requesting "appropriate injunctive relief" pending its final disposition of the unfair labor practice charges against Beverly. Dkt.no. 1. The Board contended that there was "reasonable cause" to believe the allegations that Beverly engaged in the unfair labor practices cited in its administrative complaint against Beverly. It further claimed that injunctive relief to prohibit Beverly from continuing to engage in conduct allegedly violative of sections 7 and 8 of the NLRA would be "just and proper." In the absence of injunctive relief, the Board contended that Beverly would continue to restrain and coerce employees in the exercise of the rights guaranteed in Section 7 of the Act...." Dkt.no. 1, P 8. The Board further claimed that, unless Beverly is enjoined, a "serious flouting of the Act will continue, with the result that enforcement of important provisions of the Act and the public policy underlying the same will be thwarted...." Id., at P 9. The prayer for injunctive relief not only addressed the conduct ...

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