Metro Health Foundation, Inc.

National Labor Relations Board - Board Decisions

Mar 14, 2003

338 N.L.R.B. 802 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
Metro Health Foundation, Inc., and Metro Health
Foundation—Midwest, Inc. d/b/a Cheboygan
Health Care Center and Local 79, Service Em-
ployees’ International Union, AFL–CIO. Case
7–CA–45347(4)
March 14, 2003
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 Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge and amended charge filed on
September 12 and 13, 2002, respectively, the General
Counsel issued the complaint on September 24, 2002,
alleging that the Respondent has violated Section 8(a)(1)
and (5) of the Act by refusing the Union’s request to bar-
gain and to furnish relevant and necessary information
following the Union’s certification in Case 7–RC–22253.
(Official notice is taken of the “record” in the representa-
tion 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 denying in part the allegations in
the complaint, and raising certain affirmative defenses.
On October 16, 2002, the General Counsel filed a Mo-
tion for Summary Judgment. On October 21, 2002, 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 response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the certification based on its conten-
tion, raised and rejected in the representation proceeding,
that the certified unit is inappropriate for purposes of
collective bargaining under the Act. Specifically, the
Respondent renews its argument that the unit is inappro-
priate because it is comprised of registered nurses, whom
the Respondent maintains are statutory supervisors. The
Respondent also admits its refusal to provide the infor-
mation requested by the Union, but, relying on its claim
that the Union was not properly certified, denies that it
had any legal obligation to do so.
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.1 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 letters dated August 13 and September 4,
2002:

(1) A list of all bargaining unit workers, includ-
ing: name, shift, full-time/part-time/contingent status
(including the number of hours of work per week);
rate of pay; date of hire; home address; home phone
and social security number.
(2) The Nursing Home’s three most recent Form
990’s filed in lieu of taxes including Metro Health
Foundation, Inc., Metro Health Foundation – Mid-
west, Inc. and any/all subsidiary corporations.
(3) A copy of the Employer’s handbook, person-
nel policies and work rules.
(4) Copies of all health insurance policies that
the Employer provides.
(5) Copies of any other insurance programs that
the Employer may carry (life, dental, vision, sick-
ness and accident . . .), plus the number of employ-
ees participating and monthly cost of each.
(6) A list of all employees that have health in-
surance coverage by category (individual, individual
plus one, family . . .), plus the respective monthly
premium rates.
(7) A copy of the three most recent OSHA 200
logs.
(8) Information on any pension plans or retire-
ment savings accounts that are made available to the
workers, plus the appropriate summary documents.
(9) A copy of the job description for the bargain-
ing unit classification.
(10) A copy and explanation of the current pay
structure at the Nursing Home and the basis for the
pay structure (e.g., pay based on salary, hourly, etc.).
(11) A listing of the Nursing Home’s sources of
funding (Medicare, Medicaid, private pay) for the
last three fiscal years with the corresponding funding
amounts and the supporting documentation.

1 Chairman Battista and Member Schaumber did not participate in
the underlying representation proceeding. They find, however, that the
Respondent has not raised any new matters that are properly litigable in
this unfair labor practice proceeding.
338 NLRB No. 115
METRO HEALTH FOUNDATION, INC. 803
(14) Copies of the Nursing Home’s budget for
the last three fiscal years and the projected for the
next fiscal year.

It is well established that, with the exception of em-
ployee social security numbers requested in paragraph 1
and the financial information requested in paragraphs 2,
11, and 12, all of the foregoing types of information are
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request.2 See, e.g.,
Maple View Manor, Inc., 320 NLRB 1149 (1996); Trus-
tees of the Masonic Hall, 261 NLRB 436, 437 (1982);
and Verona Dyestuff Division, 233 NLRB 109, 110
(1977). The Respondent has not provided any basis for
rebutting this presumption.
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
requested, with the exception of employee social security
numbers and the financial information sought by the Un-
ion in paragraphs 2, 11, and 12 of its information re-
quests.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business at 824 South Huron
Street, Cheboygan, Michigan (the Cheboygan facility),
has been engaged in the operation of a nursing home,
providing long-term, residential medical care. During
the calendar year ending December 31, 2001, the Re-

2 The Board has held that employee social security numbers and cer-
tain types of financial information, including IRS Form 990, are not
presumptively relevant and that the Union must therefore demonstrate
the relevance of such information. See, e.g., Grand Court-Adrian
Associates, 331 NLRB 806 fn. 1 (2000) (summary judgment denied
with respect to IRS Form 990 and other financial information); and
Dexter Fastener Technologies, 321 NLRB 612, 613 fn. 2 (1996) (sum-
mary judgment denied with respect to social security numbers and
financial information). Here, the pleadings fail to indicate why the
Union wanted the social security numbers or the IRS Form 990 and
other financial information, or to otherwise indicate the relevance of
this information. Accordingly, we cannot conclude, on the pleadings,
that the Respondent was obligated to provide this information to the
Union and we therefore deny the motion for summary judgment with
respect to the Respondent’s alleged failure to do so, and remand that
issue to the Regional Director for further appropriate action. This does
not excuse the Respondent’s failure to supply all of the other informa-
tion requested by the Union however. Such information is clearly
relevant, and the Respondent’s failure to provide the information on
request violated Sec. 8(a)(5) of the Act. See id. In so finding, we con-
strue the Union’s request for such information as pertaining to unit
employees, although the information requested is not consistently de-
scribed in these specific terms. See Freyco Trucking, Inc., 338 NLRB
787 fn. 1 (2003).
spondent, in conducting its business operations, received
gross revenue in excess of $1 million. During the same
period of time, the Respondent purchased and received
goods valued in excess of $50,000 from points located
outside the State of Michigan.
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 the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
The following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:

All full-time and regular part-time, and contingent reg-
istered nurses employed by the Employer at its facility
located at 824 South Huron Street, Cheboygan, Michi-
gan; but excluding all office clerical employees, unit
coordinators, restorative coordinator, staff development
coordinator/instructor, MDS coordinators, guards and
supervisors, as defined in the Act, and all other em-
ployees.

On August 9, 2002, the Union was certified as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit. At all times since August 9, 2002,
based on Section 9(a) of the Act, the Union has been the
exclusive representative of the unit employees.
B. Refusal to Bargain
About August 13 and September 4, 2002, the Union,
by letter, requested the Respondent to bargain and to
furnish information, and, since September 10, 2002, the
Respondent has refused. We find that this refusal consti-
tutes an unlawful refusal to bargain in violation of Sec-
tion 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after September 10,
2002, to bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit and to furnish the Union requested infor-
mation, 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)(1) and (5) 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
dent to furnish the Union the information requested, with
the exception of employee social security numbers and
the financial information sought by the Union in its in-
formation requests.
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, Metro Health Foundation, Inc. and Metro
Health Foundation—Midwest, Inc. d/b/a Cheboygan
Health Care Center, Cheboygan, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 79, Service Em-
ployees International Union, AFL–CIO, 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.
(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 regular part-time, and contingent reg-
istered nurses employed by the Employer at its facility
located at 824 South Huron Street, Cheboygan, Michi-
gan; but excluding all office clerical employees, unit
coordinators, restorative coordinator, staff development
coordinator/instructor, MDS coordinators, guards and
supervisors, as defined in the Act, and all other em-
ployees.

(b) Furnish the Union information it requested on Au-
gust 13 and September 4, 2002, with the exception of
employee social security numbers and financial informa-
tion.
(c) Within 14 days after service by the Region, post at
its facility in Cheboygan, Michigan, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region 7
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 September 10, 2002.
(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.
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 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 Local 79, Service
Employees International Union, AFL–CIO, as the exclu-
sive representative of the employees in the bargaining
unit, and WE WILL NOT refuse to furnish the Union infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of the unit employ-
ees.

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.”
METRO HEALTH FOUNDATION, INC. 805
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, and contingent reg-
istered nurses employed by us at our facility located at
824 South Huron Street, Cheboygan, Michigan; but ex-
cluding all office clerical employees, unit coordinators,
restorative coordinator, staff development coordina-
tor/instructor, MDS coordinators, guards and supervi-
sors, as defined in the Act, and all other employees.

WE WILL furnish the Union the information it requested
on August 13 and September 4, 2002, with the exception
of employee social security numbers and financial in-
formation.
METRO HEALTH FOUNDATION, INC. AND
METRO HEALTH FOUNDATION—MIDWEST, INC.
D/B/A CHEBOYGAN HEALTH CARE CENTER