Amboy Care Center

National Labor Relations Board - Board Decisions

Oct 10, 1997

324 N.L.R.B. 110 (N.L.R.B. 1997)

1
324 NLRB No. 110
1 Hereinafter referred to as 1115 NJ-A or the Union.
2 See, e.g., Sullivan Bros. Printers, 317 NLRB 561 (1995), enfd.
99 F.3d 1217 (1st Cir. 1996) (collecting cases).
3 The Respondent’s denials do not suffice to place in dispute the
Union’s labor organization status or the appropriateness of the unit,
because these were stipulated in the underlying representation pro-
ceeding and, as stated above, it has already had its opportunity for
hearing on the election objections issues that were resolved in the
representation proceeding. It does not deny receiving the attached
letter demanding bargaining, and it was formally served with notice
of the unfair labor practice charge. Whether the Respondent was re-
lieved of the bargaining obligation by subsequent events can more
appropriately be developed in a supplemental proceeding. See F. W.
Woolworth, 305 NLRB 775 (1991) (supplemental decision resolving
continuity of representation issue after the initial obligation was es-
tablished through a test of the certification.
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Amboy Care Center and 1115 Nursing Home and
Service Employees Union-New Jersey A.1 A Di-
vision of 1115 District Council. Case 22–CA–
21802
October 10, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
Pursuant to a charge filed on January 15, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint on April 14, 1997, alleging
that the Respondent has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by refusing the
Union’s request to bargain and to furnish necessary
and relevant information following the Union’s certifi-
cation in Case 22–RC–11068. (Official notice is taken
of the ‘‘record’’ in the representation proceeding as de-
fined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the com-
plaint.
On August 22, 1997, the General Counsel filed a
Motion for Summary Judgment. On August 26, 1997,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On September 16, 1997,
the Respondent filed a response and on September 17,
1997, the Union filed a letter in support of the General
Counsel’s motion.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent attacks
the validity of the certification on the basis that the
Board erred in the representation proceeding when it
set aside the first election and directed a second elec-
tion. See Amboy Care Center, 322 NLRB 207 (1996).
There was no objection to the second election. The Re-
spondent also argues that because the Union affiliated
with the Service Employees International Union after
the certification issued, there exist questions concern-
ing the process of the affiliation and whether substan-
tial continuity of representative exists. Therefore, the
Respondent argues that a hearing is necessary to de-
velop an evidentiary record and that summary judg-
ment is inappropriate.
With the exception of the affiliation issue, discussed
below, all representation issues raised by the Respond-
ent were or could have been litigated in the prior rep-
resentation proceeding. The Respondent does not offer
to adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We find it unnecessary to consider the Respondent’s
contention that the Union’s affiliation with the Service
Employees International Union destroyed continuity of
representation so as to relieve the Respondent from its
recognitional obligation.2 In its opposition to the Mo-
tion for Summary Judgment, the Respondent appears
to accept the General Counsel’s assertion that the af-
filiation was approved in March 1997. This was 3
months after the Union made its recognitional demand
by letter dated December 10, 1996, and more than a
month after the Respondent had been served with the
January 21, 1997 charge alleging as an unfair labor
practice its failure to respond to the bargaining de-
mand. In these circumstances, we find it essentially un-
disputed that the Respondent engaged in an unlawful
failure and refusal to bargain with the Union within a
reasonable time after the demand, and thereby violated
Section 8(a)(5) and (1) of the Act.3
We also find that there are no issues requiring a
hearing with respect to the Union’s request for infor-
mation. The Union requested the following information
from the Respondent:
1. A list of all bargaining unit employees ar-
ranged by classification and shift including names,
addresses, phone numbers, present wage rates,
dates of hire and average number of hours worked
per week that each has worked during the last 12
months.
2. The total number of overtime hours paid
each employee for the last 12 months.
3. A copy of the staffing patterns or schedules
for all units including a shift-by-shift breakdown
for each classification in each unit as well as the
staffing patterns on weekends per unit.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Member Higgins did not participate in the underlying representa-
tion proceeding. However, he agrees with his colleagues that no new
matters are appropriately raised in the instant ‘‘technical’’ 8(a)(5)
case and that summary judgment is therefore appropriate.
4. A copy of all current job descriptions.
5. A copy of all current work rules.
6. A copy of all policies related to employment
conditions and employees’ benefits including a
copy of all employee handbooks and manuals.
7. Copies of any Summary Plan Description
Booklets or materials for all insurance plans in-
cluding premium rates and contribution rates for
all coverages for each of the last 3 years; and
Pension Plans.
8. Names of employees enrolled in each insur-
ance category (employee only, employee plus 1,
family, etc.) for each Insurance Plan and Pension
Plan.
9. A copy of the Medicare and Medicaid cost
computation for the last 2 years and submitted to
the State Department of Health; any response
made thereto; issuance of any memorandum
which sets forth the reimbursement rate estab-
lished, changed or promulgated which rate was in
effect during said 2-year period.
Although the Respondent’s answer denies that the
foregoing information is necessary and relevant to the
Union’s duties as the exclusive collective-bargaining
representative of the unit, it is well established that
such information is presumptively relevant for pur-
poses of collective bargaining and must be furnished
on request. See, e.g., Maple View Manor, 320 NLRB
1149 (1996); Masonic Hall, 261 NLRB 436 (1982);
and Mobay Chemical Corp., 233 NLRB 109 (1977).
Accordingly, we grant the Motion for Summary
Judgment.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation, with a facility in Perth Amboy, New Jer-
sey, has been engaged in the operation of a nursing
home providing inpatient health care services. During
the 12-month period preceding the issuance of the
complaint, the Respondent in conducting its business
operations described above, derived gross revenues in
excess of $100,000 and purchased and caused to be
delivered to its New Jersey facility, goods valued at
more than $5000 directly from points outside the State
of New Jersey. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that the Union is
a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a second election held November 14,
1996, the Union was certified on November 26, 1996,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full time and regular part time service and
maintenance employees, including nurses aides,
laundry employees, housekeepers, and dietary em-
ployees employed by the Employer at the Perth
Amboy, New Jersey location, but excluding all li-
censed practical nurses, registered nurses, profes-
sional employees, office clerical employees,
guards and supervisors as defined by the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since December 10, 1996, the Union has requested
the Respondent to bargain and to furnish information,
and, since December 10, 1996, the Respondent has re-
fused. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By refusing on and after December 10, 1996, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union requested information,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
3AMBOY CARE CENTER
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Amboy Care Center, Perth Amboy, New
Jersey, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with 1115 Nursing Home
and Service Employees Union-New Jersey A, a divi-
sion of 1115 District Council, as the exclusive bargain-
ing representative of the employees in the bargaining
unit, and refusing to furnish the Union information that
is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full time and regular part time service and
maintenance employees, including nurses aides,
laundry employees, housekeepers, and dietary em-
ployees employed by the Employer at the Perth
Amboy, New Jersey location, but excluding all li-
censed practical nurses, registered nurses, profes-
sional employees, office clerical employees,
guards and supervisors as defined by the Act.
(b) Furnish the Union information that it requested
on December 10, 1996.
(c) Within 14 days after service by the Region, post
at its facility in Perth Amboy, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 22 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since January 15, 1997.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 10, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1115 Nursing
Home and Service Employees Union-New Jersey A, a
division of 1115 District Council, as the exclusive rep-
resentative of the employees in the bargaining unit and
WE WILL NOT refuse to furnish the Union information
that is relevant and necessary to its role as the exclu-
sive bargaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full time and regular part time service and
maintenance employees, including nurses aides,
laundry employees, housekeepers, and dietary em-
ployees employed by us at our Perth Amboy,
New Jersey location, but excluding all licensed
practical nurses, registered nurses, professional
employees, office clerical employees, guards and
supervisors as defined by the Act.
WE WILL furnish the Union the information it re-
quested on December 10, 1996.
AMBOY CARE CENTER