Central Manor Home for Adults

National Labor Relations Board - Board Decisions

Mar 22, 1996

320 N.L.R.B. 1009 (N.L.R.B. 1996)

1009
320 NLRB No. 121
CENTRAL MANOR HOME FOR ADULTS
1 All dates here are in 1993, unless otherwise indicated.
Central Manor Home for Adults Riverdale Manor
and 1115 Nursing Home and Service Employ-
ees Union-Long Island, a Division of 1115 Dis-
trict Council, Hotel Employees and Restaurant
Employees, AFL–CIO. Cases 29–CA–17767 and
29–CA–17789
March 22, 1996
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND FOX
On September 8, 1995, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent, Central Manor Home for Adults, filed ex-
ceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Central Manor Home for
Adults, Far Rockaway, New York, and Riverdale
Manor, Bronx, New York, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Sandra Rattner, Esq., for the General Counsel.
Stuart Bochner, Esq. (Horowitz & Pollack), of South Orange,
New York, for the Respondents.
Stuart Weinberger, Esq. (Richard Greenspan, P.C.), of
Ardsley, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by 1115 Nursing Home and Service Employees
Union-Long Island, a Division of 1115 District Council,
Hotel Employees and Restaurant Employees, AFL–CIO (the
Union or Local 1115) in Cases 29–CA–17767 and 29–CA–
17789. The Regional Director for Region 29 issued a con-
solidated complaint on December 30, 1993,1 alleging in part
that Central Manor Home for Adults (Respondent Central)
and Riverdale Manor (Respondent Riverdale), collectively
called Respondents, violated Section 8(a)(1) and (5) of the
Act by, in substance, refusing to comply with the Union’s re-
quests for an audit of their books and records.
The trial with respect to the allegation raised by the com-
plaint was held before me on June 28, 1995, in Brooklyn,
New York. Letter briefs have been filed by the General
Counsel and Respondents and have been carefully consid-
ered.
Based on the entire record, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent Central and Respondent Riverdale have both
been engaged in the operation of a nursing home providing
long-term health care services to the public, located at 1509
Central Avenue, Far Rockaway, New York, and 6355 Broad-
way, Bronx, New York, respectively.
During the past year each of the Respondents, in the
course and conduct of their respective business operations,
derived gross revenues therefrom in excess of $100,000, and
purchased and caused to be transported and delivered to their
respective facilities, medical supplies, fuel oil, and other
goods and materials valued in excess of $50,000, of which
medical supplies, fuel oil, and other goods and materials val-
ued in excess of $50,000 were transported and delivered to
their respective facilities in interstate commerce either di-
rectly from firms located outside the State of New York, or
directly from firms located within the State of New York,
each of which firms purchased the medical supplies, fuel oil,
and other goods and materials directly from firms located
outside the State of New York.
Respondents admit and I find that each of them is now
and has been at all times material an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act and a health care institution within the meaning
of Section 2(14) of the Act.
It is also admitted and I so find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. FACTS
At all times material, Respondents have been members of
the Empire State Association of Adult Homes (the Associa-
tion), which had existed for the purposes of representing its
employer members in negotiating and administering collec-
tive-bargaining agreements with various labor organizations,
including the Union.
The Association and the Union have been partners to a
collective-bargaining agreement that by its terms ran from
February 1, 1991, to January 31, 1995.
The agreement provided for a contract reopener for the
fourth year of the contract to negotiate wages, hours, and
general terms and conditions of employment. The agreement
further provides that in the event that the parties fail to
agree, the matter shall be submitted to arbitration and the
award shall be final and binding.
The agreement also provides in paragraph 20(c) that ‘‘the
Union and the Funds shall have the right to examine the Em-
ployer’s books and records once a year.’’
At some point, undisclosed by the record, the Association
ceased to exist as the collective-bargaining representative of
its employees, but the Union continued to deal with the
former constituent Association members, including Respond-
ents, on an individual basis.
Although the Respondents negotiated with the Union pur-
suant to the reopener, these negotiations were not successful.
Thus, the Union filed arbitrations against Respondents pursu-
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ant to the terms of the agreement. A hearing was held on
September 8, 1994, before Arbitrator Leon Reich concerning
the issues of the reopener of the contract.
Arbitrator Reich issued identical decisions on December
29, 1994, finding, inter alia, that both Respondent Central
and Respondent Riverdale were bound by the contract re-
opener clause, notwithstanding the change of status of the
Association, that Respondents are obligated to pay certain
specified increases in wages and contributions to certain of
the Union’s funds, and that the existing collective-bargaining
agreement between the parties continues in full force and ef-
fect for the term provided there.
Meanwhile, on various dates between January 26 and Sep-
tember 9, 1993, the Union sent identical letters to 13 em-
ployer members of the Association, including letters sent on
August 24 to Respondents. The letter requests that the Em-
ployers permit the Union to audit their books and records in-
cluding quarterly WRS–2s, payroll journals, individual pay-
roll records, and timecards.
The letters to Respondents indicate that the audit was ‘‘for
the purpose of, but not limited to, ascertaining whether you
have been making the proper remittances of Dues and Initi-
ation contributions.’’ The letters state that the period of the
audit is January 1, 1989, through December 31, 1992.
As noted the consolidated complaint issued on December
30, 1993, which alleged that Respondents, as well as 11
other employers, committed identical violations of Section
8(a)(1) and (5) of the Act.
On January 25, 1994, the Union requested withdrawal of
the charges with respect to 10 of the employers included in
the complaint, which the Regional Director approved by
order dated May 11, 1994, in view of the fact that ‘‘the par-
ties have entered into an out-of-Board settlement remedying
all of the allegations of said Consolidated Complaint’’ with
respect to these employers.
On February 3, 1995, the Union requested withdrawal of
the charge in Case 29–CA–17812 against Queens Home for
Adults, the last remaining Respondent in the original com-
plaint, with the exception of the Respondents here, which
was approved on February 8, 1995, by the Acting Regional
Director, also because the parties ‘‘entered into an out-of-
Board settlement remedying all of the allegations of said
Consolidated Complaint regarding Queens Home for
Adults.’’
As for Respondent Central and Respondent Riverdale, they
have been bargaining with the Union over the terms of a new
contract to replace the expired agreement between the par-
ties.
With respect to the audit requests sent to Respondents,
Harry Veras, the comptroller for the Union, testified that he
sent the letters in order to determine whether these Respond-
ents are making contributions to the Union’s funds and with-
holding dues for the correct number of bargaining unit em-
ployees. The August 24 letters to these Respondents set up
audit appointments for October 7 and 21 at the facilities of
Respondent Central and Respondent Riverdale, respectively.
On these dates the auditors, sent by the Union to these fa-
cilities, were refused access by the respective employers, and
were not provided the requested records. By letter dated Oc-
tober 18 and 21, respectively, Veras confirmed to the Re-
spondents that they had not permitted the audits and threat-
ened legal action to compel compliance with the Union’s re-
quest. Neither Respondent responded to or protested the ac-
curacy of these letters.
On June 2, 1994, Veras sent letters to both Respondents,
asking that they send to the Union the payroll documents in
light of the fact that they had previously refused access to
their premises for the purpose of conducting the audits. Nei-
ther Respondent Central nor Respondent Riverdale has ever
permitted the Union to audit its records, nor sent to the
Union the requested payroll information.
Neither Respondent called any witnesses, nor presented
any evidence. Respondents did issue several subpoenas,
which I subsequently quashed, on relevance grounds, the par-
ticulars of which I shall discuss below in the analysis section
of this decision.
III. ANALYSIS
It is well settled that an employer must provide the union
that represents its employees with requested information that
is necessary and relevant to the performance of its role as
collective-bargaining representative. NLRB v. Acme Industrial
Co., 385 U.S. 432 (1967).
I credit the testimony of Veras that the Union requested
the audit and payroll information so it could ascertain wheth-
er Respondents were making the proper amount of dues re-
mittances and contractual payments to the Union’s funds, and
conclude that this information is clearly necessary and rel-
evant to the Union in order to administer its collective-bar-
gaining agreements with Respondents. Audio Engineering,
302 NLRB 942, 944 (1991). A-Plus Roofing, 295 NLRB
967, 971–973 (1989).
Respondents do not seriously dispute the above conclu-
sion, but argue that the Union ‘‘effectively lost, either
through waiver (implicit or explicit) or through the require-
ment of equal treatment as between employers in a bargain-
ing unit, the right to claim that the requested information was
‘necessary’ or ‘required’ by the Union.’’ The basis for this
contention is the fact that the Union requested withdrawal of
the charges against all of the employers included in the con-
solidated complaint, except for the two Respondents here,
and that the Union did not require all of these other employ-
ers to comply with the identical audit requests that it made
to the Respondents. In that connection Respondents rely on
the testimony of Veras who admitted that not all of the other
employers complied with the audit request. Moreover the
subpoenas that it issued, which I quashed directed to a union
official and an official of the Association, according to Re-
spondent would establish that the Union did not insist on au-
dits from most if not all of the other employers, and that the
reason it did not so insist was that these other employers
agreed to bargain with the Union on a group basis and or
agreed to a contract with the Union.
Respondents argue that the Union cannot claim that the in-
formation is necessary and relevant to its bargaining func-
tions with Respondent, when it has not required similar com-
pliance with requests made to the other employers in the As-
sociation.
I rejected that defense when I quashed Respondents’ sub-
poenas, a ruling that I affirm, and shall not reconsider despite
Respondents’ request that I do so. In my view why the
Union chose to withdraw its charges against the other em-
ployers in the Association, or whether or not it insisted that
these employers comply with the same information request
1011CENTRAL MANOR HOME FOR ADULTS
2 I also reject Respondents’ argument that the questions of why the
Regional Director approved the withdrawal requests of the Union
vis-a-vis the other employers, or whether or not the Union may have
misled the Regional Director by misrepresenting that the other em-
ployers had complied with the audit requests, has any relevance to
Respondents’ obligation to supply information to the Union.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
that it made of the Respondents, is not relevant to the issue
of Respondents’ obligation to comply with a request for in-
formation. I have credited Veras that at least one reason for
the request for the audit was to administer its collective-bar-
gaining agreement with these Respondents and that is suffi-
cient to establish the necessary relevance that requires Re-
spondents to comply with the requests.
The contention of Respondents that the Union’s true pur-
pose in seeking the information was to force contract conces-
sions or multiemployer bargaining does not negate Respond-
ents’ duty to furnish the information requested. Electrical
Workers IBEW Local 292 (Sound Employers Assn.), 317
NLRB 275, 275 (1995), ‘‘it is well settled that where a party
requests information that is relevant to that party’s collective
bargaining needs, it is irrelevant that there may also be other
reasons for the request or that the information may be put
to other uses.’’ Id., Associated General Contractors of Cali-
fornia, 242 NLRB 891, 894 (1979); Utica Observer-Dis-
patch, Inc. v. NLRB, 229 F.2d 575, 577 (2d Cir. 1956). See
also A-Plus Roofing, supra at 977.
With respect to Respondents’ argument that the Union
waived its rights to the information by not compelling the
other employers to supply similar information, ‘‘national
labor policy casts a wary eye on claims of waiver of statu-
torily protected rights. Therefore, the statutory right to dis-
covery can be waived only if the Union’s waiver is clear and
unmistakable.’’ Gannett Rochester Newspapers v. NLRB, 988
F.2d 198, 203 (D.C. Cir. 1993), citing NLRB v. New York
Telephone Co., 930 F.2d 1009, 1111 (2d Cir. 1991); and
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
Clearly the Union’s conduct here does not come close to
amounting to a ‘‘clear and unmistakable’’ waiver of its statu-
tory rights to the information from Respondents, and I reject
Respondents’ contention in that regard.
Accordingly, I conclude that Respondents have violated
Section 8(a)(1) and (5) of the Act by refusing to supply rel-
evant and necessary information to the Union.2
The complaint also alleges and the General Counsel con-
tends, as an alternative theory, that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally modifying the
contract without the Union’s consent. Scott Lee Guttering
Co., 295 NLRB 497, 510–511 (1989).
In that connection the General Counsel relies on the con-
tractual provision that allows the Union the right to examine
that Employer’s books and records to determine whether the
Employer has complied with contribution requirements of the
agreement.
Respondents acknowledge this provision, but point out that
the clause restricts the review period to 1 year only, and the
Union requested records for a period of 2 years. Respondents
would undoubtedly have had a valid defense to this allega-
tion, had they insisted on the Union’s compliance with the
contract and offered the Union their records for the contrac-
tually prescribed 1-year period. However, they did not do so.
Nor did either Respondent ever raise the issue of the extent
of the audit request as a defense to the Union’s demand and,
as noted, never offered to permit an audit for a 1-year period.
In these circumstances, I conclude that Respondents cannot
rely on the Union’s failure to request records for a 1-year pe-
riod, inasmuch as the Respondents’ failure to permit the
audit was clearly not based on the fact that the request was
for records for a period of 2 years. I therefore find that Re-
spondents have violated Section 8(a)(1) and (5) of the Act
by failing to comply with the contractual requirement for an
examination of their books, without the Union’s consent.
CONCLUSIONS OF LAW
1. Respondent Central and Respondent Riverdale are em-
ployers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to permit the Union to audit
their books and records and to supply the Union with re-
quested information necessary for, and relevant to, the
Union’s ability to administer its collective-bargaining agree-
ment and to the Union’s performance of its function as col-
lective-bargaining representative, Respondents have engaged
in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
4. By failing to comply with their contractual obligation
to allow the Union to examine their books and records, Re-
spondents have engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act.
5. The unfair labor practices are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they cease and desist
therefrom and take certain affirmative action necessary to ef-
fectuate the policies of the Act. I shall recommend that Re-
spondents permit the Union to audit their books and records,
and to supply the information requested in the Union’s letters
of August 24 and October 18 and 21, 1993, and June 2,
1994.
Based on the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended3
ORDER
A. The Respondent, Central Manor Home for Adults, Far
Rockaway, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1115 Nursing
Home and Service Employees Union-Long Island, a Division
of 1115 District Council, Hotel Employees and Restaurant
Employees, AFL–CIO as the exclusive collective-bargaining
representative of its employees in an appropriate bargaining
unit, and by failing and refusing to permit the Union to audit
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
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.’’
its books and records, failing and refusing to furnish the
Union with information necessary for, and relevant to, the
Union’s ability to administer the collective-bargaining agree-
ment properly and that is relevant and necessary to its func-
tion as the representative.
(b) Failing and refusing to comply with its contractual ob-
ligation to permit the Union to examine its books and
records.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly permit the Union access to its premises in
order to audit and examine its books and records, and supply
the Union the information requested in its letters of August
24 and October 18, 1993, and June 2, 1994.
(b) Post at its Far Rockaway, New York facility copies of
the attached notice marked ‘‘Appendix A.’’4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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 notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, Riverdale Manor, Bronx, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1115 Nursing
Home and Service Employees Union-Long Island, a Division
of 1115 District Council, Hotel Employees and Restaurant
Employees, AFL–CIO as the exclusive collective-bargaining
representative of its employees in an appropriate bargaining
unit and by failing and refusing to permit the Union to audit
its books and records, failing and refusing to furnish the
Union with information necessary for, and relevant to, the
Union’s ability to administer the collective-bargaining agree-
ment properly and that is relevant and necessary to its func-
tion as the representative.
(b) Failing and refusing to comply with its contractual ob-
ligation to permit the Union to examine its books and
records.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly permit the Union access to its premises in
order to audit and examine its books and records, and supply
the Union the information requested in its letters of August
24 and October 21, 1993, and June 2, 1994.
(b) Post at its Bronx, New York facility, copies of the at-
tached notice marked ‘‘Appendix B.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to bargain collectively with 1115
Nursing Home and Service Employees Union-Long Island, a
Division of 1115 District Council, Hotel Employees and Res-
taurant Employees, AFL–CIO as the exclusive collective-bar-
gaining representative of our employees in an appropriate
bargaining unit, by failing and refusing to permit the Union
to audit our books and records, or failing and refusing to fur-
nish the Union with information necessary for, and relevant
to, the Union’s ability to administer the collective-bargaining
agreement properly and that is relevant to and necessary to
its function as the representative.
WE WILL NOT fail and refuse to comply with our contrac-
tual obligation to permit the Union to examine our books and
records.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL promptly permit the Union access to our prem-
ises in order to audit and examine our books and records,
and supply the Union the information requested in its letters
to us of August 24 and October 18, 1993, and June 2, 1994.
CENTRAL MANOR HOME FOR ADULTS
1013CENTRAL MANOR HOME FOR ADULTS
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT refuse to bargain collectively with 1115
Nursing Home and Service Employees Union-Long Island, a
Division of 1115 District Council, Hotel Employees and Res-
taurant Employees, AFL–CIO as the exclusive collective-bar-
gaining representative of our employees in an appropriate
bargaining unit, by failing and refusing to permit the Union
to audit our books and records, or failing and refusing to fur-
nish the Union with information necessary for, and relevant
to, the Union’s ability to administer the collective bargaining
agreement properly and that is relevant to and necessary to
its function as the representative.
WE WILL NOT fail and refuse to comply with our contrac-
tual obligation to permit the Union to examine books and
records.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL promptly permit the Union access to our prem-
ises in order to audit and examine our books and records,
and supply the Union the information requested in its letters
to us of August 24 and October 21, 1993, and June 2, 1994.
RIVERDALE MANOR