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Walsh v. Mountain View Care and Rehabilitation Center, LLC

United States District Court, M.D. Pennsylvania

July 2, 2019

DENNIS P. WALSH, Regional Director of the Fourth Region of the NATIONAL LABOR RELATIONS BOARD, for and on behalf of the NATIONAL LABOR RELATIONS BOARD Petitioner,
v.
MOUNTAIN VIEW CARE AND REHABILITATION CENTER, LLC Respondent.

          MEMORANDUM OPINION

          ROBERT D. MARIANI, UNITED STATES DISTRICT JUDGE

         I. Introduction and Procedural History

         Presently before the Court is the Regional Director of the Fourth Region of the National Labor Relations Board's Petition for Injunction under Section 10(j) of the National Labor Relations Act, as Amended (Doc. 1). Petitioner seeks injunctive relief pursuant to Section 10(j) of the National Labor Relations Act ("NLRA") pending final disposition of the matters pending before the Board with respect to unfair labor practices alleging that Mountain View Care and Rehabilitation Center, LLC (the Respondent herein), has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(1) and (3) of the NLRA. Specifically, the Regional Director has charged the Respondent, as an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the NLRA, with unlawfully interrogating an employee, Yolanda Ramos, about her union activities and the union activities of other employees on March 4, 2019, and thereafter on that same date, suspending Yolanda Ramos and then discharging her on March 5, 2019.

         A hearing before an Administrative Law Judge of the National Labor Relations Board is scheduled to begin on July 8, 2019. (Doc. 14-4).

         The Regional Director's petition for injunctive relief requests that this Court, pursuant to Section 10(j) of the NLRA, direct the Respondent to appear before this Court and show cause why an injunction should not issue enjoining and restraining the Respondent and its officers and agents, pending final disposition of these matters pending before the Board from:

(a) discharging, suspending, or otherwise discriminating against employees because they support or assist the Union or engage in protected concerted activity;
(b) interrogating employees about their union membership, activities, and sympathies;
(c) in any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the NLRA.

(Doc. 1, at 6-7). The Petition further requests that the Court enter an Order directing the Respondent, its officers, representatives, agents, servants, employees, attorneys, successors, and assigns and "all persons acting in concert or participation with it or them" to do the following pending final disposition of the matters pending before the NLRB:

(a)Within 5 days, on an interim basis, rescind the suspension issued to Yolanda Ramos and not rely on that suspension when issuing any future discipline;
(b)Within 5 days, on an interim basis, offer Yolanda Ramos immediate reinstatement to her previous position or, if that position no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges she previously enjoyed, displacing, if necessary any employees hired to replace her;
(c)Within 10 days of the Court's Order, to hold a mandatory employee meeting or meetings, on working time and scheduled to ensure the widest possible employee attendance, at which the District Court's Order will be read to employees by a responsible Respondent official in the presence of a Board agent or, at the Respondent's option, have a Board agent read the Order in the presence of a responsible Respondent official, with notice of the meeting for the reading of the Order to be announced in the same manner as the Respondent would customarily announce a meeting of employees and require all service and maintenance employees at this facility to attend the meetings and to obtain the prior approval of the Regional Director of the Fourth Region of the NLRB as to the time and date of the meeting or meetings for the reading of the Court's Order and the Regional Director's approval of the content and method of announcement to employees of the reading of the Court's Order;
(d) Within 20 days of the issuance of this Court's Order, to file with the District Court with service upon the Petitioner, a sworn Affidavit from a responsible official of the Respondent setting forth with specificity the manner in which the Respondent has complied with the Court's Order, including the locations and posting required by the Order.

(Id. at 7-8).

         This Court, by Order dated June 25, 2019, directed the Respondent to show cause why an injunction should not issue enjoining and restraining it from engaging in certain acts and conduct in violation of the NLRA as described above pending final disposition of these matters before the NLRB. (Doc. 9).

         On July 1, 2019, the Court held a hearing on the Regional Director's Petition for Injunction under Section 10(j) of the NLRA. At the hearing, the parties each presented opening and closing statements. In addition, Petitioner called Luis Lopez, an organizer for the Retail, Wholesale and Department Store Union, as a witness, and introduced several exhibits into evidence.

         The Petition having been fully briefed and a show cause hearing having been held, the Petition is ripe for disposition. For the reasons that follow, the Regional Director's Petition for Injunction under Section 10(j) of the NLRA (Doc. 1) will be granted as set forth in this memorandum opinion and the accompanying order.[1]

         II. Findings of Fact

         1.Petitioner is the Regional Director of the Fourth Region of the National Labor Relations Board (the "Board"), an agency of the United States, and filed the Petition for and on behalf of the Board. (Doc. 11, at 2, ¶ 1; Doc. 14, at 9, ¶ 1).

         2.Respondent is Mountain View Care and Rehabilitation Center, LLC, the operator of a licensed nursing facility located in Scranton, Lackawanna County, Pennsylvania, and the employer in the related case pending before the National Labor Relations Board. (Doc. 14, at 9, ¶ 3).

         3.Jurisdiction of this Court is invoked pursuant to Section 10(j) of the NLRA. (Doc. 11, at 2, ¶ 2; Doc. 14, at 9, ¶ 2).

         4.On May 1, 2019, Retail, Wholesale and Department Store Union (the "Union"), pursuant to the provisions of the NLRA, filed an amended charge with the Board in Case 04-CA-238216 alleging that Respondent, an employer within the meaning of Section 2(2) of the Act, has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. (Doc. 11, at 2, ¶ 3; see also, Amended Charge Against Employer, Doc. 1, Ex. A).

         5.On May 14, 2019, the Union, pursuant to the provisions of the NLRA, filed a second amended charge with the Board in Case 04-CA-235894 alleging that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. (Second Amended Charge Against Employer, Doc. 1, Ex. B).

         6.On May 16, 2019, based upon the charge in Case 04-CA-235894 and 04-CA-238216, the General Counsel of the Board, on behalf of the Board, by Petitioner, issued an "Order Consolidating Cases, Consolidated Complaint and Notice of Hearing" (the "Complaint"), pursuant to Section 10(b) of the NLRA, alleging inter alia that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. (Doc. 11, at 2, ¶ 5; NLRB Order, Doc. 1, Ex.C).

         7.Respondent does not contest that, under the standards of proof applicable in Section 10(j) proceedings, there is reasonable cause to believe that the allegations set forth in the Complaint before the Board are true. However, Respondent is contesting that matter on the merits before the Board and the Board has scheduled a hearing in that matter for July 8, 2019 before an Administrative Law Judge. (Doc. 14, at 10, ¶ 5; see also, Hr'g Tr., at 6, 23 (Respondent's counsel acknowledging that "under the minimal standards required under 10(j), we do concede that the Board has met their burden" with respect to the "reasonable cause" prong of the Section 10(j) analysis)).

         8. Upon consideration of the evidence presented to the Court, including all exhibits filed of record and all testimony and exhibits produced at the hearing, and Respondent's agreement that there is reasonable cause to believe that the allegations set forth in the Complaint are true, the Court finds for the purposes of injunctive relief afforded under Section 10(j) that there is reasonable cause to believe that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act. (Doc. 11, at 3-5, ¶ 6). Specifically,

a. At all material times, Respondent, a Pennsylvania limited liability company, has provided rehabilitation services and nursing home care at a nursing home located in Scranton, Pennsylvania.
b. During the past year, Respondent, in conducting its business operations described, received gross revenues in excess of $100, 000 and purchased and received at the Nursing Home goods valued in excess of $5, 000 directly from points outside the Commonwealth of Pennsylvania.
c. At all material times, Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the NLRA and a health care institution within the meaning of Section 2(14) of the Act.
d. At all material times, the Union has been a labor organization within the meaning of ...

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