North Atlantic Medical Services

National Labor Relations Board - Board Decisions

Mar 20, 2000

330 N.L.R.B. 139 (N.L.R.B. 2000)

330 NLRB No. 139
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.
Regional Home Care, Inc., d/b/a North Atlantic
Medical Services and Truck Drivers Union Lo-
cal No. 170 a/w International Brotherhood of
Teamsters, AFL–CIO. Case 1–CA–37697
March 20, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
HURTGEN
Pursuant to a charge filed on November 10, 1999,1 the
General Counsel of the National Labor Relations Board
issued a complaint on December 16, 1999, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain and to furnish information following
the Union’s certification in Case 1–RC–20292. (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 admitting
in part and denying in part the allegations in the com-
plaint.
On January 24, 2000, the General Counsel filed a Mo-
tion for Summary Judgment. On January 28, 2000, 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
opposing the General Counsel’s motion.
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 that it is refusing
to bargain and to furnish information that is alleged as
relevant and necessary to the Union’s role as bargaining
representative, but attacks the validity of the certification
on the basis of its objections to the election.2
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-

1 Although the Respondent states that it has insufficient knowledge
or information to admit or deny the complaint allegations with respect
to the filing and service of the charge, it is clear from the exhibits at-
tached to the General Counsel’s motion that the charge was filed and
served as alleged in the complaint, and the Respondent has not chal-
lenged the authenticity of those documents.
2 Although the Respondent states that it has insufficient knowledge
or information to admit or deny paragraph 5 of the complaint alleging
the labor organization status of the Union, the Respondent failed to
raise this issue in the underlying representation proceeding. Accord-
ingly, we find that the Respondent is precluded from litigating the
matter in this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB
732 fn. 1 (1992), and Wickes Furniture, 261 NLRB 1062, 1063 fn. 4
(1982).
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).
Further, although the Respondent states in its answer
that it has insufficient knowledge or information to admit
or deny the allegation that the information requested by
the Union is relevant and necessary, it is well established
that employment information of the type requested is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request.3 We therefore
find that no material issues of fact exist with regard to
the Respondent’s refusal to furnish the information
sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment4 and will order the Respondent to recognize and
bargain with the Union and to furnish it the information
requested.
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 in Leominster, Mas-
sachusetts, has been engaged in the delivery of oxygen
and durable medical equipment and supplies to private
homes and to nursing homes.
During the calendar year ending December 31, 1998,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $500,000.
During the same period of time, the Respondent, in
conducting its business operations, performed services
valued in excess of $50,000 in States other than the
Commonwealth of Massachusetts.
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
Following the election held June 1, 1995, the Union
was certified on October 1, 1999, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

3 See Masonic Hall, 261 NLRB 436 (1982) and Verona Dyestuff Di-
vision, 233 NLRB 109, 110 (1977).
4 Member Hurtgen notes that while he dissented in part from the
Board’s September 9, 1999 Decision, Order and Direction, his dissent
did not go to the issues presented in this proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
All regular full-time and part-time field service equip-
ment technicians (drivers), equipment repairmen,
warehousemen, delivery men, and dispatchers em-
ployed by the Respondent at its Leominster, Massachu-
setts facility, but excluding all other employees, office
clerical employees, professional employees, managerial
employees, confidential employees, guards, and super-
visors as defined in the Act.5

The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About October 4, 1999, the Union, by letter, requested
the Respondent to recognize and bargain and, since Oc-
tober 4, 1999, the Respondent has failed and refused.
Since about October 15, 1999, the Union, by letter from
its attorney, requested the Respondent to furnish the
names, addresses, telephone numbers, and seniority dates
of unit employees. Since about October 15, 1999, the
Respondent has failed and refused. We find that these
failures and refusals constitutes unlawful refusals to bar-
gain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after October 4, 1999,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the
appropriate unit and to furnish the Union the requested
information, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) 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 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).

5 Although the Respondent’s answer denied the appropriateness of
this unit, that denial does not raise any matter warranting a hearing
because the Respondent stipulated to this unit in the Stipulated Election
Agreement in Case 1–RC–20292. We further note that the Respondent
has not challenged the appropriateness of the unit in its response to the
Notice to Show Cause in this case, nor has it explained its denial in the
face of its prior stipulation.
ORDER
The National Labor Relations Board orders that the
Respondent, Regional Home Care, Inc., d/b/a North At-
lantic Medical Services, Leominster, Massachusetts, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Truck Drivers Union Lo-
cal No. 170, a/w International Brotherhood of Teamsters,
AFL–CIO, 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.
(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 regular full-time and part-time field service equip-
ment technicians (drivers), equipment repairmen,
warehousemen, delivery men, and dispatchers em-
ployed by the Respondent at its Leominster, Massachu-
setts facility, but excluding all other employees, office
clerical employees, professional employees, managerial
employees, confidential employees, guards, and super-
visors as defined in the Act.

(b) Furnish the Union the information that it requested
on October 15, 1999.
(c) Within 14 days after service by the Region, post at
its facility in Leominster, Massachusetts, copies of the
attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent’s author-
ized representative, 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 Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

6 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.”
NORTH ATLANTIC MEDICAL SERVICES 3
ployed by the Respondent at any time since October 4,
1999.
(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. March 20, 2000

John C. Truesdale, Chairman

Wilma B. Liebman, Member

Peter J. Hurtgen, 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 Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Truck Drivers Un-
ion Local No. 170, a/w International Brotherhood of
Teamsters, AFL–CIO, as the exclusive representative of
the employees in the bargaining unit, and WE WILL NOT
refuse to furnish the Union information that is relevant
and necessary to its role as the exclusive bargaining rep-
resentative 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 regular full-time and part-time field service equip-
ment technicians (drivers), equipment repairmen,
warehousemen, delivery men, and dispatchers em-
ployed by us at our Leominster, Massachusetts facility,
but excluding all other employees, office clerical em-
ployees, professional employees, managerial employ-
ees, confidential employees, guards, and supervisors as
defined in the Act.

WE WILL furnish the Union the information it requested
on October 15, 1999.

REGIONAL HOME CARE, INC., D/B/A NORTH ATLANTIC
MEDICAL SERVICES