Laurel Baye Healthcare of Lake Lanier, LLC

National Labor Relations Board - Board Decisions

Dec 28, 2005

346 N.L.R.B. 159 (N.L.R.B. 2005)

LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC
346 NLRB No. 15
159
Laurel Baye Healthcare of Lake Lanier, LLC and
United Food and Commercial Workers Union,
Local 1996. Case 10–CA–35752
December 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Charging Party’s status as the certi-
fied bargaining representative. Pursuant to a charge filed
on July 18, 2005, the Acting General Counsel issued the
complaint on July 27, 2005, alleging that the Respondent
has violated Section 8(a)(1) and (5) of the Act by refus-
ing the Charging Party’s request to bargain and to furnish
information following the Charging Party’s certification
in Case 10–RC–15475. (Official notice is taken of the
“ecord” in the representation proceeding 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, admitting in part and deny-
ing in part the allegations in the complaint.
On August 16, 2005, the Acting General Counsel filed
a Motion for Summary Judgment. On August 18, 2005,
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 filed a reply. The
Respondent attached to its reply an amended answer,
admitting in part and denying in part the allegations of
the complaint, and asserting affirmative defenses.1 The
Acting General Counsel filed a brief in response to the
Respondent’s reply, and the Charging Party filed a brief
in support of the General Counsel’s motion.2

1 Sec. 102.23 of the Board’s Rules permits a respondent to “amend
his answer at any time prior to the hearing.” Accordingly, we have
accepted the Respondent’s amended answer to the complaint.
2 As discussed infra, the Respondent contends that, in light of the
July 29, 2005 disaffiliation of the United Food and Commercial Work-
ers from the AFL–CIO, the Charging Party “may not be a valid succes-
sor to the labor organization that was certified” in the underlying repre-
sentation proceeding. The Acting General Counsel and the Charging
Party filed briefs responding to the Respondent’s contention.
On September 15, 2005, the Respondent filed a motion for leave to
file a surreply brief, arguing that it should have the opportunity to re-
spond to the arguments advanced by the Acting General Counsel and
the Charging Party. In D. L. Baker, Inc., 330 NLRB 521 fn. 4 (2000),
however, the Board held that in consideration of the need for adminis-
trative finality, surreply briefs are not generally permitted, except
where there are circumstances warranting special leave to file such a
brief. In this case, the Respondent failed to show that the circum-
stances warrant departure from the Board’s general practice; therefore,
the Respondent’s motion is denied.
Member Schaumber would grant the Respondent’s motion because
the issue the Respondent raises is of some moment and such issues are
best decided on a full record of argument and counterargument.
Ruling on Motion for Summary Judgment
The Respondent contends that the Charging Party’s
certification is invalid because the Board erred in over-
ruling its objections to the election in the representation
proceeding. In addition, the Respondent argues that the
July 29, 2005 disaffiliation of the United Food and
Commercial Workers Union from the AFL–CIO “raises
issues as to whether a disaffiliation vote was held and, if
so, whether such a vote was conducted with adequate due
process safeguards.” Further, the Respondent contends
that the “organizational changes mandated by the disaf-
filiation . . . are arguably sufficient to destroy any sub-
stantial continuity with the previously affiliated Union.”
Under these circumstances, the Respondent asserts that
the “Charging Party may not be a valid successor to the
labor organization that was certified to represent the Re-
spondent’s employees in Case 10–RC–15475.” There-
fore, the Respondent requests that the General Counsel’s
Motion for Summary Judgment be denied and that the
case be remanded for a hearing. As explained below, we
find no merit in the Respondent’s contentions.
A. The Representation Issues
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.3 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).
B. The Disaffiliation Issue
A review of the record herein, including the record in
Case 10–RC–15475, reveals that the petition was filed on
August 31, 2004, by “UFCW Local 1996.”4 The Deci-
sion and Direction of Election issued on October 29,
2004, and identified the Petitioner as “United Food and
Commercial Worker’s Union, Local 1996.” The election

3 The Respondent’s amended answer denies par. 6 of the complaint,
which sets forth the appropriate unit. The unit issue, however, was
litigated in the underlying representation proceeding. (The Regional
Director found the petitioned-for unit to be appropriate in his Decision
and Direction of Election, and on November 24, 2004, the Board issued
an Order denying the Respondent’s request for review.) Accordingly,
the Respondent’s denial does not raise any litigable issue in this pro-
ceeding.
4 The petition form asks for the full name of the national or Interna-
tional labor organization of which the petitioner is an affiliate. In this
section of the form, UFCW Local 1996 listed “UFCW International
Union[,] AFL–CIO.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD160
was held on November 26, 2004, and the tally of ballots
issued the same day showed that a majority of the valid
votes had been cast for the Petitioner, i.e., “United Food
and Commercial Worker’s Union, Local 1996.” The
Certification of Representative issued by the Board on
June 27, 2005, also identified the Petitioner as “United
Food and Commercial Workers Union, Local 1996.”5
By letter dated July 5, 2005, the executive assistant to
the president of “UFCW Local 1996” requested that the
Respondent recognize and bargain with it and that the
Respondent provide it with specific information. By
letter dated July 7, 2005, the Respondent refused to enter
into negotiations and or furnish the requested informa-
tion on the ground that the Respondent “does not believe
that the NLRB election . . . was conducted pursuant to
the [necessary] laboratory conditions.”6 Thereafter, as
stated above, on July 29, 2005, the United Food and
Commercial Workers disaffiliated from the AFL–CIO.
The issue before us is not novel. In prior cases, the
Board and the courts have considered and rejected the
contention that a labor organization’s disaffiliation from
the AFL–CIO, without more, is sufficient to call into

5 As the Acting General Counsel asserts, the instant case is distin-
guishable from the Board’s recent decision in Woods Quality Cabinetry
Co., 340 NLRB 1355 (2003), in which the notice of election and the
ballot incorrectly designated the petitioner as affiliated with the AFL–
CIO. The Board majority found that the affiliation issue was material to
the election campaign, as evidenced by the fact that both parties made a
point of informing employees that the petitioner was no longer affili-
ated with the AFL–CIO. Under these circumstances, the Board major-
ity concluded that the “discrepancy between the parties’ message, and
the conflicting notice and ballot language, reasonably would tend to
confuse employees with respect to the affiliation status of the union that
they were being asked to vote on as their bargaining representative.”
Id. at 1356.
Here, as discussed above, the election documents were clear and
consistent in identifying the Petitioner as United Food and Commercial
Workers, Local 1996. Further, there is no indication that the disaffilia-
tion of the United Food and Commercial Workers from the AFL–CIO,
which occurred some 8 months after the election, was material to the
election campaign or had any effect on employee free choice. Al-
though the Respondent contends, as one of its affirmative defenses, that
the employees should have been informed of the pending change in
affiliation prior to the election, this amounts to nothing more than an
untimely election objection and therefore will not be considered.
Member Liebman, who dissented in Woods Quality Cabinetry,
agrees that it is distinguishable.
6 In its amended answer, the Respondent denies the complaint alle-
gations that by letter dated July 5, 2005, the Charging Party requested
that the Respondent recognize and bargain with it, and that since about
July 7, 2005 (inadvertently misstated as 2004), the Respondent has
refused. However, the General Counsel has attached as exhibits to his
Motion for Summary Judgment copies of the July 5 and 7, 2005 letters
described above. In its reply to the Notice to Show Cause, the Respon-
dent has not contested the authenticity of these documents, and in its
amended answer, the Respondent acknowledges receiving the July 5
letter. Accordingly, we find that the Respondent’s denials raise no
genuine issue of material fact warranting a hearing.
question the continuity of the identity of the certified
bargaining representative.7
In M & M Bakeries, Inc., 121 NLRB 1596, 1602
(1958), enfd. 271 F.2d 602 (1st Cir. 1959), the Board
held that the expulsion of an International union from the
AFL–CIO did not affect the status of the local union as
the bargaining representative, and was not a defense to
the refusal-to-bargain charge allegations of the com-
plaint. The Board observed that the certification of the
bargaining representative ran to the local union, and that
the relationship between the local and the international
union had not been changed or otherwise affected by the
split between the International and the AFL–CIO. In
sum, the Board found that there was no schism or other
internal dispute within the local, and the expulsion of the
International from the organization with which it was
affiliated did not create any confusion “as to the identity
of the organization designated by the employees to repre-
sent them.” Id., citing Louisiana Creamery, Inc., 120
NLRB 170 (1958) (expulsion of the petitioner and its
parent international from the AFL–CIO did not create
confusion as to the identity of the organization selected
by the employees, so no new showing of interest was
required).8
Similarly, in Ace Folding Box Corp., 124 NLRB 23,
26–27 (1959), enfd. sub nom. NLRB v. Weyerhaeuser
Co., 276 F.2d 865 (7th Cir. 1960), the Board held that the
disaffiliation of the certified union from the AFL–CIO
did not relieve the employer from its obligation to bar-
gain. The Board reasoned that “disaffiliation, unaccom-
panied by evidence or offer of evidence of change in
organic structure, composition, or leadership of a labor
organization, does not tend to affect the identity of the
organization.”9 The court agreed with the Board, stating
that a “mere change of name or disaffiliation with the
AFL–CIO is not sufficient” to establish a change in the
identity of a labor organization. 276 F.2d at 873 (citing,
inter alia, Continental Oil Co. v. NLRB, 113 F.2d 473,
477 (10th Cir. 1940) (union’s shift in affiliation from the
American Federation of Labor to the Committee for In-

7 The cases cited by the Respondent are not on point, as they do not
address this issue. RCN Corp., 333 NLRB 295 (2001) (employer vio-
lated Sec. 8(a)(5) by withdrawing recognition after independent union
affiliated with the Communications Workers of America); Syscon In-
ternational, Inc., 322 NLRB 539 (1996) (employer violated Sec.
8(a)(5) by refusing to bargain following merger of sister locals of the
same international union); Sullivan Bros. Printers, 317 NLRB 561
(1995) (same), enfd. 99 F.3d 1217 (1st Cir. 1996).
8 Alternatively, the Board held that the employer could not rely on
the International’s expulsion as a defense to the 8(a)(5) allegation be-
cause the expulsion occurred after the refusal to bargain.
9 Alternatively, the Board held that the employer could not rely on
the disaffiliation as a defense to the 8(a)(5) allegation because the disaf-
filiation occurred after the refusal to bargain.
LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC 161
dustrial Organization did not represent “such [a] disrup-
tion or change of identity as to affect in any manner the
validity of the parts of the order requiring [the employer]
to bargain collectively with the union”)).
Here, in opposing the General Counsel’s Motion for
Summary Judgment, the Respondent cites only the disaf-
filiation of the United Food and Commercial Workers
from the AFL–CIO. Under the precedent discussed
above, however, disaffiliation from the AFL–CIO, stand-
ing alone, is insufficient to raise a genuine issue as to the
identity of the certified labor organization. Therefore, a
union’s decision to disaffiliate from the AFL–CIO, by
itself, is not the kind of change in circumstance that the
Board has traditionally required to be subject to a vote of
union members. Cf. NLRB v. Food & Commercial
Workers Local 1182 (Seattle-First National Bank), 475
U.S. 192, 198–200 (1986) (describing the Board’s prac-
tice where an independent union decides to affiliate with
a national or international organization). Although the
Respondent alleges generally that as a result of the disaf-
filiation the Charging Party “is a materially different or-
ganization,” the Respondent fails to support its conclu-
sory assertions with any specifics. For example, the Re-
spondent does not propose to adduce at a hearing evi-
dence indicating that the disaffiliation created any confu-
sion concerning the identity of the certified representa-
tive. Indeed, the Respondent’s position rests essentially
on the assertion that the Charging Party “may not be a
valid successor to the labor organization that was certi-
fied.” (Emphasis added.) Such speculation, however, is
insufficient to establish that there are genuine issues of
material fact warranting a hearing.
Moreover, as in M & M Bakeries, supra, and Ace Fold-
ing Box, supra, the disaffiliation occurred after the re-
fusal to bargain. Thus, as discussed above, the record
shows that the Respondent has refused to bargain with
the Charging Party since July 7, 2005. The disaffiliation
of the United Food and Commercial Workers from the
AFL–CIO did not take place until July 29, 2005. As
recognized by the courts, there is “no useful purpose
served by permitting the employer to defend the propri-
ety of an earlier refusal to bargain by relying on subse-
quent events that had nothing to do with the refusal.”
NLRB v. Springfield Hospital, 899 F.2d 1305, 1315 (2d
Cir. 1990), quoting NLRB v. Fall River Dyeing & Finish-
ing Corp., 775 F.2d 425, 433 (1st Cir. 1985), affd. on
other grounds 482 U.S. 27 (1987).
C. The Information Issue
There are no factual issues warranting a hearing with
respect to the Charging Party’s request for information.
The record shows that by letter dated July 5, 2005, the
Charging Party requested the following information:
a. Name, address, telephone number, date of hire,
classification, rate of pay, date of birth, sex.
b. Job descriptions and responsibilities for each
job classification.
c. Copy of all company policies.
d. Copy of all employee handbook(s).
e. Copy of all disciplinary policies.
f. Copy of all employee benefits, including but
not limited to, medical, hospitalization and pension,
sick leave, vacation, ESOP, 401-K, holidays with
pay, etc.
g. Summary Plan descriptions for all benefits
provided requiring a “SPD”.
h. Name, date of birth, gender, marital status of
bargaining unit employees who participate in each
benefit program including the names, date of birth,
and gender of their dependents. Indicate what type
of coverage has been selected by the bargaining unit
employee, i.e., individual, family, etc.
i. Actuary valuation for any Pension Plan pro-
vided to employees.
j. Cost of each benefit referenced in paragraph (f)
above to the employer, along with the cost to em-
ployees, if any.
k. The date employees received a wage increase
and the amount of the increase for the years 2001,
2002, 2003, 2004, and through 2005.
Although the Respondent’s amended answer generally
denies that the information requested is necessary for and
relevant to the Charging Party’s duties as the exclusive
collective-bargaining representative of the unit employ-
ees, it is well established that all of the foregoing types of
information are presumptively relevant for purposes of
collective bargaining and must be furnished on request.
See, e.g., Mission Foods, 345 NLRB 788 (2005); Metro
Health Foundation, 338 NLRB 802 (2003); Stanford
Hospital & Clinics, 338 NLRB 1042 (2003); American
Logistics, Inc., 328 NLRB 443 (1999), enfd. 214 F.3d
935 (7th Cir. 2000), and cases cited therein. The Re-
spondent has not asserted any basis for rebutting the pre-
sumptive relevance of the information.
Conclusion
Accordingly, for all of the above reasons, we grant the
Acting General Counsel’s Motion for Summary Judg-
ment, and will order the Respondent to bargain and to
furnish the information requested by the Charging Party.
On the entire record, the Board makes the following
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD162
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a South Carolina
corporation, with an office and place of business in Bu-
ford, Georgia, has been engaged in the business of pro-
viding skilled care nursing services.
During the calendar year preceding issuance of the
complaint, a representative period, the Respondent, in
conducting its business operations described above, de-
rived gross revenues in excess of $100,000. During this
same period, the Respondent purchased and received at
its Buford, Georgia facility goods valued in excess of
$50,000 directly from points outside the State of Geor-
gia.
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 United Food and Commercial
Workers Union, Local 1996 (the Union) is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held November 26, 2004, the
Union was certified on June 27, 2005, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and part-time service and maintenance
employees, CNA’s, restorative aids [sic], activity assis-
tants, medical record clerks, central supply clerks, and
unit secretaries, but excluding all employees employed
by Healthcare Services Group, Inc., including RN’s,
LPN’s and charge nurses, confidential employees, pro-
fessional 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.
B. Refusal to Bargain
By letter dated July 5, 2005, the Union requested that
the Respondent recognize and bargain collectively with it
as the exclusive collective-bargaining representative of
the certified unit and that the Respondent provide it with
specific information. The information requested by the
Union is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit.
Since on or about July 7, 2005, the Respondent has
failed and refused to bargain with the Union and to fur-
nish it with the requested information. We find that this
failure and refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing since July 7, 2005, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, and to provide the Union with requested informa-
tion, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 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 it requested by
letter dated July 5, 2005.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation 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, Laurel Baye Healthcare of Lake Lanier,
LLC, Buford, Georgia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food and Com-
mercial Workers Union, Local 1996 as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the exclu-
sive 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.
LAUREL BAYE HEALTHCARE OF LAKE LANIER, LLC 163
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and part-time service and maintenance
employees, CNA’s, restorative aids [sic], activity assis-
tants, medical record clerks, central supply clerks, and
unit secretaries, but excluding all employees employed
by Healthcare Services Group, Inc., including RN’s,
LPN’s and charge nurses, confidential employees, pro-
fessional employees, guards and supervisors as defined
in the Act.
(b) Furnish the Union with the information requested
by the Union in its letter dated July 5, 2005.
(c) Within 14 days after service by the Region, post at
its facility in Buford, Georgia, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 7, 2005.
(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.

10 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.”
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with United Food and
Commercial Workers Union, Local 1996 as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and WE WILL NOT refuse to furnish the Un-
ion information that is relevant and necessary to its role
as the exclusive 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 bar-
gaining unit:
All full-time and part-time service and maintenance
employees, CNA’s, restorative aids, activity assistants,
medical record clerks, central supply clerks, and unit
secretaries, but excluding all employees employed by
Healthcare Services Group, Inc., including RN’s,
LPN’s and charge nurses, confidential employees, pro-
fessional employees, guards and supervisors as defined
in the Act.
WE WILL furnish the Union with the information re-
quested by the Union in its letter dated July 5, 2005.
LAUREL BAYE HEALTHCARE OF LAKE LANIER,
LLC