Milford Manor Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

Dec 13, 2005

346 N.L.R.B. 50 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 7
50
Milford Manor Nursing & Rehabilitation Center and
SEIU 1199 New Jersey Health Care Union.1 Case
22–CA–26745
December 13, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 18, 2005, Administrative Law Judge D.
Barry Morris issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions 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 Respondent, Milford Manor Nursing and
Rehabilitation Center, West Milford, New Jersey, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Robert Gonzalez, Esq., for the General Counsel.
David Jasinski, Esq. and Peter Dugan, Esq., for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case was
heard before me in Newark, New Jersey, on June 7 and 17,
2005. Upon a charge filed on January 18, 2005, a complaint
was issued on March 31, 2005 alleging that Milford Manor
Nursing & Rehabilitation Center (Respondent or Milford
Manor) violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act). Respondent filed an answer denying
the commission of the alleged unfair labor practice.

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) of the Act by failing to furnish all of the information requested
in the Union’s letter dated July 23, 2004, we note that the record sup-
ports the judge’s finding that, at the time the charge was filed on Janu-
ary 18, 2005, the Respondent had not provided the information re-
quested by the Union. Thus, there was an 8(a)(5) violation. To the
extent some information may have been supplied later, these matters
can be addressed in compliance proceedings.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on July
29, 2005.
On the entire record of the case, including my observation of
the demeanor1 of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New Jersey corporation, with an office and
place of business in West Milford, New Jersey, has been en-
gaged in the operation of a nursing home providing inpatient
medical care. It has been admitted, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. In addition, it has been admitted
and I find that SEIU 1199 New Jersey Health Care Union,
AFL–CIO (the Union) is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
Since March 1989, the Union and Respondent have been
parties to successive collective-bargaining agreements (CBA),
the most recent of which expired on March 31, 2005. The CBA
includes a memorandum of agreement (MOA) executed by the
parties on December 14, 2002, which provides that Respondent
“may increase the percentage of Agency employees to no more
than 40%.”
On January 7, 2004,2 the Union filed a grievance alleging
that Respondent violated the CBA by employing temporary
agency workers in excess of the 40 percent permitted by the
MOA.
By letter dated May 11, the Union requested information
from Respondent including a list of each occasion that Respon-
dent used agency personnel, the total number of hours paid to
bargaining unit employees, the reasons why bargaining unit
personnel were not used and the name of each agency used,
together with the amounts paid to the agencies. On May 27,
Milford Manor responded to the letter by supplying some of the
information requested.
After the May 27 response, Larry Alcoff, a union representa-
tive, spoke with counsel for Respondent, David Jasinksi. Alcoff
told Jasinski that the information supplied was “not respon-
sive.” On June 28, Jasinski sent Alcoff a list of agency person-
nel who were used at Milford Manor. There were further tele-
phone conversations during which Alcoff told Jasinksi that the
information supplied was insufficient. Jasinski replied that the
May 11 request constituted a “fishing expedition,” to which
Alcoff said that he would redraft the request “tailored” to the
specific information that was needed. On July 23, the Union
sent a new information request to respondent.

1 Credibility resolutions have been based on the witnesses’ de-
meanor, the weight of respective evidence, established or admitted
facts, inherent probabilities, and inferences drawn from the record as a
whole.
2 All dates refer to 2004, unless otherwise specified.
MILFORD MANOR NURSING & REHABILITATION CENTER 51
The arbitration commenced on October 13. Helen Wrobel,
counsel for the Union, asked for the balance of the information
requested. Respondent’s position was that “they did not have
the documents that we had requested. They had provided us
with whatever they had . . . they did not have additional infor-
mation . . . . It was not kept by them. It was agency records.”
The arbitrator ruled that Respondent had 30 days to provide the
additional information to the Union.
On November 23, Wrobel wrote to Arbitrator Restaino
pointing out that Respondent still had not supplied all of the
information requested. A second day of hearing was then
scheduled for January 31, 2005. At the arbitration hearing held
on January 31, Respondent furnished additional information.
Jasinksi stated that “they do not have access to all of the docu-
ments.” The arbitrator ruled that Respondent was to make
available its books and records “for the Union to conduct an
audit.” The Union never conducted the audit, claiming that it
did not have an auditor available to conduct the examination.
B. Conclusions
As part of its duty to bargain in good faith, an employer must
comply with a union’s request for information, including in-
formation relevant to the processing of grievances.
Stevens International, 337 NLRB 143, 150 (2001). I find that
the information requested by the Union in its letter of July 23
was necessary and relevant for the Union to perform its duties
as exclusive bargaining representative of its unit employees.
See Lenox Hill Hospital, 327 NLRB 1065, 1068–1069 (1999).
Respondent contends that it produced all of the information
that it had in its possession but could not produce the informa-
tion which was in the agency’s possession. A similar argument
was made in United Graphics, 281 NLRB 463, 466 (1986), and
was rejected by the Board.
The Board stated (id.):
We further find that the Respondent’s other defense
based on nonpossession of the requested information is
without merit. The Respondent has stipulated that Person-
nel Pool provides it with the names of the temporary
workers. As for the other information requested, there is
no evidence that Respondent has requested Personnel Pool
to provide it with the information that the Union has
sought. The Respondent thus has failed to demonstrate that
such information is unavailable.
As in United Graphics, Respondent has failed to demonstrate
that the information that it did not supply is unavailable. Ac-
cordingly, I find that Respondent, by failing to supply all of the
information requested by Respondent’s letter of July 23 has
violated Section 8(a)(5) and (1) of the Act.
III. MOTION TO DEFER TO ARBITRATION
In its brief, for the first time, Respondent argues that this
matter should be deferred to arbitration, pursuant to Spielberg
Mfg. Co., 112 NLRB 1080 (1955). Respondent did not assert
this as an affirmative defense in its answer. At no time during
the hearing did Respondent assert this as a defense. Thus, the
General Counsel was never given the opportunity to litigate the
matter or present any arguments as to whether this proceeding
should be deferred to arbitration. Not only has this motion not
been “fully litigated,” it in fact has not been litigated at all.
Accordingly, the motion to defer to arbitration is denied. See
Maintenance Service Corp., 275 NLRB 1422, 1425 (1985);
Union-Tribune Publishing Co., 307 NLRB 25 fn. 2 (1992).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. At all material times the Union has been the exclusive col-
lective-bargaining representative of the employees in the ap-
propriate unit.
4. By failing to furnish all of the information requested in the
Union’s letter dated July 23, 2004, Respondent has engaged in
an unfair labor practice within the meaning of Section 8(a)(5)
and (1) of the Act.
5. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair labor
practice, I find that it must be ordered to cease and desist there-
from and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, I shall order that Re-
spondent, on request, furnish to the Union the information in its
possession requested in the Union’s letter dated July 23, 2004. I
shall also order Respondent to make a reasonable effort to se-
cure the other information requested in the letter, and, if that
information remains unavailable, to explain or document the
reasons for its unavailability.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Milford Manor Nursing & Rehabilitation
Center, West Milford, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the Union by fail-
ing to furnish the information requested in the Union’s letter
dated July 23, 2004.
(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 effec-
tuate the policies of the Act
(a) On request, furnish to the Union the information in its
possession requested in the Union’s letter dated July 23, 2004.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD52
(b) Make a reasonable effort to secure the other information
requested in the Union’s letter dated July 23, 2004, and, if that
information remains unavailable, explain or document the rea-
sons for its unavailability.
(c) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix.”4 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 Respondent and main-
tained 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. In the event that, during the pendency of these pro-
ceedings, 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 current employees and former employees employed by the
Respondent at any time since July 23, 2004.
(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.

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 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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain in good faith with the Union
by failing to furnish the information requested in the Union’s
letter dated July 23, 2004.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, furnish the Union the information
which we have in our possession requested in the Union’s letter
dated July 23, 2004, and WE WILL make a reasonable effort to
secure the other information, and if that information remains
unavailable, we will explain or document the reasons for its
unavailability.
MILFORD MANOR NURSING & REHABILITATION
CENTER