Excel Rehabilitation & Health Center

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 10 (N.L.R.B. 2001)

NOTICE: This opinion is subject to formal revision before publication in the
Board volumes of NLRB decisions. Readers are requested to notify the Ex­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
AOTOP, LLC d/b/a Excel Rehabilitation and Health
Center and 1115 Florida Division of 1199, Ser­
vice Employees International Union, AFL–CIO–
CLC. Case 12–CA–21576
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND
TRUESDALE
Pursuant to a charge filed on June 11, 2001, the Ge n­
eral Counsel of the National Labor Relations Board is-
sued a complaint on July 17, 2001, alleging that the Re­
spondent has violated Section 8(a)(5) and (1) of the Na­
tional Labor Relations Act by refusing the Union’s re-
quest to bargain and to furnish information following the
Union’s certification in Case 12–RC–8576. (Official
notice is taken of the “record” in the representation pro­
ceeding as defined 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, with af­
firmative defenses, admitting in part and denying in part
the allegations in the complaint.
On August 6, 2001, the General Counsel filed a Mo­
tion for Summary Judgment. On August 9, 2001, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent did not file a
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain and to furnish information that is alleged to be rele­
vant and necessary to the Union’s role as bargaining rep­
resentative, but attacks the validity of the certification on
the basis its objections to the election in the representa­
tion proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa­
tion proceeding. The Respondent does not offer to ad­
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir­
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un­
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB , 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing regarding the Union’s request for information.
The Union requested the following information from the
Respondent by letter of April 25, 2001:
1. A list of current employees, including their
names, dates of hire, rates of pay, job classification,
department, last known address, and phone number.
2. A copy of all current company personnel poli­
cies and procedures which relate to or have an effect
on bargaining unit employees, including but not lim­
ited to, leaves of absence, shifts, starting times, hir­
ing rules, safety rules, vacation, holidays and over-
time.
3. A copy of all company fringe benefits plans,
including pension, profit sharing, severance, stock
initiative, health insurance, apprenticeship, training,
legal services, child care, or any other plans which
relate to the employees, and where applicable, cop­
ies of summary plan descriptions for such plans.
4. Copies of all current job descriptions for bar-
gaining unit employees.
5. Copies of any company wage and salary plans,
including schedules for employees on incentive jobs.
6. Any and all agreements signed with all sub-
contractors that relate to the bargaining unit employ­
ees’ jobs, wages, benefits, and working conditions.
The Respondent denies that the requested information
is necessary for, and relevant to, the Union’s perform­
ance of its duties as the exclusive collective-bargaining
representative of the unit employees. It is well estab­
lished that, except for the subcontracting information
requested in item number 6, the foregoing type of com­
pensation and employment information sought by the
Union is presumptively relevant for purposes of collec­
tive bargaining and must be furnished on request unless
its relevance is rebutted.1 The Respondent has not at-
tempted to rebut the relevance of the information re-
quested by the Union.
1 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp. , 233 NLRB 109 (1977).
The Board has held that subcontracting information like that re-
quested by the Union in item 6 is not presumptively relevant and there-
fore a union seeking such information must demonstrate its relevance.
Sunrise Health & Rehabilitation Center, 332 NLRB No. 133 (2000);
Associated Ready Mixed Concrete, 318 NLRB 318 (1995), enfd. 108
F.3d 1182 (9th Cir. 1997). Here, the Union did not specify in its re-
quest why it wanted the subcontracting information, or otherwise dem­
onstrate its relevance. This, however, does not excuse the Respon­
dent’s failure to provide all of the other information requested by the
Union, which we have found is presumptively relevant.
336 NLRB No. 10
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Accordingly, we grant the Motion for Summary Judg­
ment 2 and will order the Respondent to bargain with the
Union and furnish the Union with the information it re-
quested, with the exception of the subcontracting infor­
mation in item 6.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corpo­
ration with an office and place of business in Tampa,
Florida (the Respondent’s Tampa facility), has been en-
gaged in the business of operating a nursing home.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its business
operations, derived gross revenues valued in excess of
$100,000, and purchased and received at its Tampa, Flor­
ida facility goods valued in excess of $50,000 directly
from points outside the State of Florida.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that 1115 Florida Division of 1199,
Service Employees International Union, AFL–CIO–CLC
is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held January 31, 2001, the Un­
ion was certified on April 18, 2001, as the exclusive col­
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part -time service and mainte­
nance employees, including certified nursing assistants,
dietary aides, cooks, dietary production supervisor,
housekeeping aides, laundry aides, maintenance aides,
floor technicians, medical records employees, central
supply clerks, rehabilitation tech/aides, restorative
aides, physical therapy assistants, activities aides, re­
ceptionists and staffing coordinators employed by Re­
spondent at its Tampa, Florida facility, excluding all
other employees, professional employees, confidential
employees, guards and supervisors as defined in the
Act.
The Union continues to be the exclusive representative un­
der Section 9(a) of the Act.
2 The Respondent’s requests that the complaint be dismissed and that
it recover costs and attorneys’ fees are denied.
B. Refusal to Bargain
Since about April 25, 2001, the Union has requested
the Respondent to bargain and to furnish information,
and, since on about that same date, the Respondent has
refused. 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 April 25, 2001, to bargain
with the Union as the exclusive collective-bargaining
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 Sec­
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
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 understanding
in a signed agreement. We also shall order the Respon­
dent to furnish the Union the information requested.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer­
tification as beginning the date the Respondent 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).
ORDER
The National Labor Relations Board orders that the
Respondent, AOTOP, LLC d/b/a Excel Rehabilitation
and Health Center, Tampa, Florida, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1115 Florida Division of
1199, Service Employees International Union, AFL–
CIO–CLC, as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to
furnish the Union information that is relevant and neces­
sary to its role as the exclusive bargaining representative
of the unit employees.
(b) In any like or related manner interfering with, re-
straining, 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.
EXCEL REHABILITATION & HEALTH CENTER 3
(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 employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:
All full-time and regular part -time service and mainte­
nance employees, including certified nursing assistants,
dietary aides, cooks, dietary production supervisor,
housekeeping aides, laundry aides, maintenance aides,
floor technicians, medical records employees, central
supply clerks, rehabilitation tech/aides, restorative
aides, physical therapy assistants, activities aides, re­
ceptionists and staffing coordinators employed by Re­
spondent at its Tampa, Florida facility, excluding all
other employees, professional employees, confidential
employees, guards and supervisors as defined in the
Act.
(b) Furnish the Union the information that it requested
on April 25, 2001, with the exception of the subcontract­
ing information.
(c) Within 14 days after service by the Region, post at
its facility in Tampa, Florida, copies of the attached no­
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 12 after
being signed by the Respondent’s authorized representa­
tive, shall be posted by the Respondent 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 Respon­
dent to ensure that the notices 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 proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 25, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re ­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. September 28, 2001
Peter J. Hurtgen, Chairman
3 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 Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Wilma B. Liebman, Member
John C. Truesdale, 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 vio­
lated the National Labor Relations Actand has ordered us to
post and abide by this notice.
WE WILL NOT refuse to bargain with 1115 Florida Divi­
sion of 1199, Service Employees International Union,
AFL–CIO–CLC, as the exclusive representative of the
employees in the bargaining unit, and WE WILL NOT re-
fuse to furnish the Union information that is relevant and
necessary to its role as the exclusive bargaining represen­
tative 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 bar-
gaining unit:
All full-time and regular part -time service and mainte­
nance employees, including certified nursing assistants,
dietary aides, cooks, dietary production supervisor,
housekeeping aides, laundry aides, maintenance aides,
floor technicians, medical records employees, central
supply clerks, rehabilitation tech/aides, restorative
aides, physical therapy assistants, activities aides, re­
ceptionists and staffing coordinators employed by us at
our Tampa, Florida facility, excluding all other em­
ployees, professional employees, confidential employ­
ees, guards and supervisors as defined in the Act.
WE WILL furnish the Union the information it requested
on April 25, 2001, with the exception of the subcontract­
ing information.
AOTOP, LLC D/B/A EXCEL REHABILITATION
AND HEALTH CENTER