Fernbach v. Sprain Brook Manor Rehab, LLC et al
| Karen P. Fernbach |
| Sprain Brook Manor Rehab, LLC, Pinnacle Dietary, Inc., Budget Services, Inc. and Local 713 International Brotherhood of Trade Unions (IBOTU) |
| 1199 SEIU United Healthcare Workers East |
| 1:2014cv09859 |
| December 12, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Richard J. Sullivan |
| Labor/Management Relations |
| 29 U.S.C. ยง 160 |
| None |
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Filing
36
OPINION AND ORDER re: 4 MOTION TO TRY PETITION FOR TEMPORARY INJUNCTION re: 2 Petition (Other) filed by Karen P. Fernbach. For the reasons stated above, the Court grants Petitioner's motion for a temporary injunction and de nies Budget's motions. The Court finds that there is reasonable cause to believe that Respondents SBM Rehab, Pinnacle, Budget, and Local 713 have engaged in serious and pervasive unfair labor practices in violations of Sections 8(a)(1), (2), (3) , (5), and 8(b)(1)(A) of the NLRA, and that injunctive relief is just and proper. Accordingly, IT IS HEREBY ORDERED THAT, pending the final disposition of the related matters pending before the Board, SBM Rehab, its officers, representatives, agents , servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the excl usive collective bargaining representative of employees in the Unit; (b) Subcontracting or otherwise performing Unit work with non-Unit employees in retaliation for its employees assisting 1199 SEIU and/or to discourage employees from engaging in tho se activities and/or without first providing 1199 SEIU with notice and the opportunity to bargain either to an agreement concerning the decision to subcontract or overall impasse on a collective bargaining agreement; as set forth herein. IT IS FU RTHER ORDERED THAT SBM Rehab take the following affirmative actions: (a) Within fourteen (14) days of the issuance of this Order, rescind the current subcontracts for the performance of Unit dietary, nursing, housekeeping and laundry work, restore such work to the bargaining Unit; and offer immediate interim reinstatement to all employees currently performing Unit work, with the terms and conditions of employment that existed for those positions on September 12, 2012; (b) Within fourteen (14) days of this Order, offer immediate reinstatement to Unit employees Clarisse Nogueira and Alvin Nicholson to their former job positions and working conditions, as they existed on or about September 12, 2012, with the terms and conditions of employme nt that existed on September 12, 2012, or if those job positions no longer exists, to substantially equivalent positions, displacing, if necessary, any workers contracted for, hired, or reassigned to replace them, without prejudice to their seniorit y or any other rights or privileges previously enjoyed; (c) Withdraw recognition from Local 713 as the purported collective bargaining representative of any Unit employees; as set forth herein. IT IS FURTHER ORDERED THAT, pending the final disposi tion of the related matters pending before the Board, Pinnacle, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restra ined from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the exclusive collective bargaining representative of employees in the Dietary Unit; (b) Implementing changes to the terms and conditions of employment of e mployees in the Dietary Unit that are mandatory subjects for the purposes of collective bargaining without first providing 1199 SEIU with notice and the opportunity to bargain either to an agreement concerning the change or overall impasse on a colle ctive bargaining agreement; (c) Terminating, or causing the termination of, employees because of their support for and activities on behalf of 1199 SEIU and to discourage employees from engaging in these activities; as set forth herein. IT IS FU RTHER ORDERED THAT Pinnacle take the following affirmative actions: (a) Rescind any and all collective bargaining agreements with Local 713 as they relate to the Dietary Unit employees; (b) Within five (5) days of the issuance of the Court's ord er, mail a copy of this Order to the homes of all current Pinnacle's employees, supervisors, and managers employed at the Facility, and maintain proofs of mailing as required by this Order; and (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the Board for Region 2, a sworn affidavit from a responsible official of Pinnacle, setting forth with specificity the manner in which Pinnacle complied an d will continue to comply with the terms of the decree, including the location of the documents to be posted under the terms of this decree. IT IS FURTHER ORDERED THAT, pending the final disposition of the related matters pending before the Board, Bu dget, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Failing and refusing to recognize and bargain in good faith with 1199 SEIU as the exclusive collective bargaining representative of employees in the Nursing Unit; as set forth herein. IT IS FURTHER ORDERED THAT Budget take the following affirmative actions: (a) Rescind any and all co llective bargaining agreements with Local 713 as they relate to the Nursing and Dietary Unit employees; (b) Within five (5) days of the issuance of the Courts order, mail a copy of this Order to the homes of all current Budget employees, supervisors, and managers employed at the Facility, and maintain proofs of mailing as required by this Order; (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the Board for Region 2, a sworn affidavit from a responsible official of Budget, setting forth with specificity the manner in which Budget complied and will continue to comply with the terms of the decree, including the location of the documents to be p osted under the terms of this decree. IT IS FURTHER ORDERED THAT, pending the final disposition of the related matters pending before the Board, Local 713, its officers, representatives, agents, servants, employees, attorneys, successors and assigns, and all persons acting in concert or participation with it or them, are enjoined and restrained from: (a) Entering into and/or maintaining a collective bargaining agreement with SBM Rehab, Pinnacle, Budget and/or any other entity purpo1ting to cov er employees employed at the Facility; as set forth herein. IT IS FURTHER ORDERED THAT Local 713 take the following affirmative actions: (a) Rescind any and all collective bargaining agreements with SBM Rehab, Pinnacle, Budget, or any other entity purporting to cover any and all Unit employees employed at the Facility; (b) Within five (5) days of the issuance of the Court's order, mail a copy of this Order to the homes of all employees employed at the Facility and covered by a collective bargaining agreement between Local 713 and SBM Rehab, Pinnacle, Budget and/or any other entity; and (c) Within fourteen (14) days of the issuance of the Court's order, file with the Court, with a copy submitted to the Regional Director of the B oard for Region 2, a sworn affidavit from a responsible official of Local 713, setting forth with specificity the manner in which Local 713 complied and will continue to comply with the terms of the decree, including the location of the documents to be posted under the terms of this decree. (Signed by Judge Richard J. Sullivan on 3/9/2015) (mro)
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