Orthodox Jewish Home for the Aged

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 1006 (N.L.R.B. 1994)

1006
314 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We correct the judge’s inadvertent error of not including the
Board’s standard language in par. 1(c) of the recommended Order
and modify the notice accordingly. 1 All dates are in 1993 unless otherwise indicated.
Orthodox Jewish Home for the Aged and District
1199 WV/KY/OH, Service Employees Inter-
national Union, AFL–CIO–CLC. Cases 9–CA–
30478 and 9–CA–30770
August 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On March 8, 1994, Administrative Law Judge Rob-
ert T. Wallace issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ortho-
dox Jewish Home for the Aged, Cincinnati, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) 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. Substitute the attached notice for that of the ad-
ministrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail to bargain in good faith with Dis-
trict 1199 WV/KY/OH, Service Employees Inter-
national Union, AFL–CIO–CLC, by not promptly com-
plying with requests for information necessary and rel-
evant to performance of its duties as your exclusive
bargaining representative and by unilaterally imple-
menting changes in your terms and conditions of em-
ployment.
WE WILL NOT fail to reinstate employees who en-
gage in an unfair labor practice strike against us imme-
diately upon receipt of their unconditional offer to re-
turn to work.
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 offer immediate and unconditional rein-
statement to all employees who participated in the un-
fair labor practice strike against us which commenced
on February 22, 1993, and WE WILL make them whole,
with interest, for all wages and benefits denied them
from and after the date (April 28, 1993) on which we
received their unconditional offer to return to work.
WE WILL, on request, bargain in good faith with
District 1199 WV/KY/OH, Service Employees Inter-
national Union, AFL–CIO–CLC as your exclusive bar-
gaining representative concerning terms and conditions
of employment; and, if an understanding is reached,
embody it in a signed agreement.
ORTHODOX JEWISH HOME FOR THE AGED
Carol Shore, Esq., for the General Counsel.
J. Alan Lips and Michael Lueder, Esqs. (Taft, Stettinius &
Hollister), of Cincinnati, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
ROBERT T. WALLACE, Administrative Law Judge. This
case was tried in Cincinnati, Ohio, on September 7–8, 1993.1
The charge was filed on March 11 and the complaint was
issued on April 29.
1007ORTHODOX JEWISH HOME FOR THE AGED
2 General Counsel’s unopposed motion (on p. 14 of his brief) to
correct errata in the transcript is granted. Likewise, granted is Re-
spondent’s unopposed motion, dated November 3, to rectify a print-
ing error in its brief by accepting amended pp. 25 through 29.
3 Earlier during the session on December 30 the Union sought
wage increases at the beginning of each year of a 3-year contract,
while the Home countered with an offer of an increase but only for
the duration of a 1-year contract.
The basic issue is whether Respondent violated Section
8(a)(5) of the National Labor Relations Act by not com-
plying with the Union’s request for certain Medicaid data,
thereby rendering a unilateral wage increase and failure to re-
instate striking employees unlawful under Section 8(a)(1),
(3), and (5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent,2 I make the
following
FINDINGS OF FACT
Respondent, a corporation, operates a nonprofit religiously
oriented nursing home in Cincinnati, where it annually re-
ceives revenues in excess of $100,000. It admits and I find
that it is an employer engaged in commerce within the mean-
ing 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.
The Home has about 108 elderly residents who require
regular maintenance and terminal care, and approximately 70
percent are Medicaid recipients. It employs a managerial and
clerical staff of 45 individuals in addition to approximately
100 bargaining unit employees represented by the Union.
The Union was first certified as exclusive collective-bar-
gaining representative of the unit in 1971; and since that time
it successfully negotiated a series of 3-year contracts the
most recent being effective from February 8, 1989, through
December 7, 1992.
Negotiations for a new contract began on October 22,
1992, and entailed 10 sessions over a 7-month period ending
on June 2. At the second session (December 2), Home Exec-
utive Director Leonard Sternberg abandoned the 20-year pat-
tern of 3-year contracts and demanded that any agreement be
limited in duration to 1 year, stating he did not want the
Home overextended in light of a declining census of resi-
dents, overstaffing, and uncertainty as to what changes would
be made in Ohio’s Medicaid reimbursement formula as a re-
sult of an overall revision effective in July. Sternberg never
retreated from that demand and the Union vigorously op-
posed it.
By letter dated December 14, 1992, the Union’s lead nego-
tiator (Veronica Davis) requested 6 items of information, in-
cluding ‘‘two most recent Medicaid cost computation sheets
showing the Medicaid rate setting calculation for the Home.’’
Responding on December 23, the Home provided informa-
tion on five of the items but as to the Medicaid sheets it stat-
ed:
We do not believe you are entitled . . . . These cal-
culation sheets are used by the Ohio Department of
Human Resources in calculating and auditing reim-
bursements for Medicaid covered residents . . . . Such
income information is irrelevant to these negotiations,
since we have not pled poverty or otherwise claimed
that the Home cannot economically meet the Union’s
demands. We have repeatedly told you that the Home
is simply ‘‘unwilling’’ to offer more than the proposed
increase in wages and benefits. If you see any special
basis under the law for requiring production of the in-
formation, please immediately bring it to our attention
so we can reconsider our position.
There was no written response by the Union. However,
David Regan, its Regional Director for Ohio who assisted
Davis in the negotiations, contends that the Medicaid costing
sheets were orally requested at virtually every session; and
that at the session on December 28 (the first to be held after
the December 23 refusal), and again on December 30, he ex-
plained that the sought data would enable the Union to deter-
mine how close the Home’s historic costs were to the pre-
July Medicaid reimbursement ceilings, thereby to assess the
likelihood of its being adversely affected by changes in the
program and the legitimacy of its claimed need for a short
term agreement. As stated by Regan (Tr. 168–169):
What was said [on December 28] . . . was that we
needed that information to be able to evaluate your . . .
linking a one-year agreement to this uncertainty in the
Medicaid system . . . . I said . . . that that uncertainty
is much more relevant if you’re near the ceilings under
the reimbursement system. If you’re not, there’s less
credence to that claim . . . . Without that information,
we had no way to judge how vulnerable the Home was
to any possible changes coming in July . . . . [No one]
was . . . predicting reductions in the absolute costs of
the Medicaid ceilings. That was said . . . [and so] the
further you are from them the less vulnerable you are
under any changes that come to pass.
Regan also states, without contradiction, that at the session
on December 30 Home’s representative justified insistence
on a 1-year agreement by stating that ‘‘[while] they’re not
in financial difficulty yet, they’re trying to be financially
sound, they want to avoid being in dire financial straights.’’3
Executive Director Sternberg testified that union requests
for the Medicaid data at the sessions were sporadic and cas-
ual and that its representatives never mentioned ‘‘ceilings’’
or otherwise explained why it needed that data.
On February 19 the parties met briefly. The Home prof-
fered a final proposal. The session ended with no conces-
sions on either side. On the next day the Union sought and
obtained a strike vote; and the strike began on February 22.
On March 7, the Home unilaterally effected a wage in-
crease pursuant to its final offer; and on March 24 it advised
the Union that all striking employees had been permanently
replaced. By letter dated April 26, the Union conveyed to the
Home an unconditional offer to return to work on behalf of
striking employees. Viewing the strike as an economic one,
the Home proceeded to rehire striking employees, but only
as openings developed.
On May 20, 3 weeks after the complaint issued, the Home
made the requested data available to the Union.
The core question presented is whether the Home had a
duty to provide the data in furtherance of the collective-bar-
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
gaining process, and this in turn depends on whether it was
relevant in the context of a bargaining issue. NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). The standard of relevancy,
however, is a liberal one akin to discovery. Dahl Fish Co.,
279 NLRB 1084 (1986). Further, the information sought
need not be dispositive of the issue in dispute but merely
have some bearing on it. See Pfizer, Inc., 268 NLRB 916,
918 (1984).
I find sufficient relevance.
Admittedly, contract duration was a key issue throughout
the bargaining process. By basing its need for a short-term
rather than long-term contract on, among other things, uncer-
tainty as to whether its main source of revenue (i.e., Med-
icaid reimbursements from the State of Ohio) would be ad-
versely affected by an eminent overall legislative revision, it
placed the likelihood of that result in issue for the reasons
expressed by Union Representative Regan. And, unlike the
situation in Neilsen Lithography Co., 305 NLRB 697 (l991),
the request here was not for wholesale financial information.
Rather, it was discrete in scope, asking for a specific docu-
ment—one directly related to the issue in question.
As to whether those reasons were contemporaneously
given, I have credited his affirmative claim finding it im-
probable that he simply reiterated the Union’s request for the
Medicaid data at a bargaining session without giving (or
being asked for) reasons. See Emery Industries, 268 NLRB
824, 825 (1984); Beverly Enterprises, 310 NLRB 222, 227
(1993).
I find no merit in the Home’s alternative claim that it was
under no obligation to provide the requested Medicaid data
because it could have been secured from public records in
the office of the Ohio Department of Health in Columbus,
Ohio. Even if true, there is no indication that it contempora-
neously advised the Union of that circumstance. Moreover,
its duty to provide relevant data in its possession is not ex-
cused by the fact that it may be obtained elsewhere. Kroger
Co., 226 NLRB 512, 513–514 (1976).
Further, the fact that the Home eventually (on May 20,
after the complaint issued) made the Medicaid data available
lacks significance in the circumstances of this case. See Dahl
Fish Co., 279 NLRB 1084, 1103 (1986). The Union was en-
titled to the information in a timely fashion in order to per-
form its function as a bargaining agent in an intelligent fash-
ion. Quality Engineered Products, 267 NLRB 593, 598
(1983); K & K Transportation Corp., 254 NLRB 722, 736
(1981).
I conclude that by failing to respond to the Union’s data
request in a timely manner the Home frustrated the collec-
tive-bargaining process in violation of Section 8(a)(1) and (5)
of the Act.
This in turn renders unlawful Home’s unilateral implemen-
tation of its final wage proposal on March 4. The Board has
held that an employer’s wrongful failure to supply relevant
data for negotiations constitutes a failure to bargain in good
faith and precludes the parties from reaching a genuine im-
passe. See Pertec Computer, 284 NLRB 810, 812 (1987).
Dahl Fish Co., supra; Coalite, Inc., 278 NLRB 293, 300–301
(1986); Harvstone Mfg. Corp., 272 NLRB 939, enfd. as
modified 785 F.2d 570 (7th Cir. 1986). Accordingly, the
Home was not privileged to implement its final offer, and its
action in doing so also violates Section 8(a)(1) and (5).
A remaining question is whether the Home had an obliga-
tion promptly to recall and reinstate striking employees pur-
suant to their April 26 unconditional offer to return. And this
depends on whether the strike, at least in part, was caused
by the unfair labor practice. Lifetime Door Co., 179 NLRB
518, 523 (1969); Citizens National Bank of Wilmar, 245
NLRB 389, 391 (1979). I find this clearly was the case from
its inception. The information request was resolutely pressed
by the Union and it related directly to one of the main issues
(contract duration) in the negotiations (cf. C-Line Express,
292 NLRB 638 (1989)); and I find probable and credit
Regan’s claim that on the morning of February 22, just prior
to their strike vote, assembled union members were told that
denial of the information request would be pursued through
an unfair labor practice charge. I attribute no special signifi-
cance to the circumstance that the Union’s effort to generate
public sympathy and support during the strike did not in-
clude publicizing Home’s failure in that regard but instead
focused exclusively on easily understood ‘‘bread and butter’’
issues. See Lifetime Door Co., supra. I conclude that Home’s
failure immediately to reinstate striking employees on receipt
of their unconditional offer to return was discriminatory in
violation of Section 8(a)(1) and (3).
CONCLUSION OF LAW
The Respondent, Home, violated the Act in the particulars
and for the reasons stated above; and its violations have af-
fected, and unless permanently enjoined will continue to af-
fect, commerce within the meaning of Section 2(6) and (7)
of the Act.
REMEDY
In addition to the customary cease-and-desist order and re-
quirement for notice posting, my order will require Respond-
ent to immediately and unconditionally reinstate all employ-
ees who participated in the unfair labor practice strike which
commenced on February 22, 1993, and make them whole for
all wages and benefits denied them from and after April 28,
1993, the likely date of receipt of their unconditional offer
to return, with backpay and interest thereon to be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987); and to recognize and, on request, bargain with
District 1199 WV/KY/OH, Service Employees International
Union, AFL–CIO–CLC as the exclusive representative of
employees in regard to terms and conditions of employment
and, if understanding is reached, embody the understanding
in a signed agreement.
Disposition
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
1009ORTHODOX JEWISH HOME FOR THE AGED
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Orthodox Jewish Home for the Aged,
Cincinnati, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to bargain in good faith with District 1199
WV/KY/OH, Service Employees International Union, AFL–
CIO–CLC by not promptly complying with requests for in-
formation necessary and relevant to performance of its duties
as the exclusive collective-bargaining representative employ-
ees in a unit composed of:
All full time and regular part-time service and mainte-
nance employees employed at Respondent’s location
situated at Towne Avenue and Paddock Road, Cin-
cinnati, Ohio, including waitresses, porters, orderlies,
nurses aides, dishwashers, maids, cooks, cooks’ assist-
ants, salad girls, laundry workers, and licensed practical
nurses; but excluding all office clerical employees, pro-
fessional employees, guards and supervisors as defined
by the Act, all administrative employees, registered
nurses, private duty nurses, registered technicians, beau-
ty operators and barbers, temporary employees as de-
fined in the collective bargaining agreement, and all
others not specifically included,
and by unilaterally implementing changes in terms and con-
ditions of employment.
(b) Failing immediately to reinstate employees engaged in
an unfair labor practice strike upon receipt of their uncondi-
tional offer to return to work.
(c) In any like or related manner 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 ef-
fectuate the policies of the Act.
(a) Offer immediate and unconditional reinstatement to all
employees who participated in the unfair labor practice strike
which commenced on February 22, 1993, and make them
whole for all wages and benefits denied them from and after
April 28, 1993, in the manner set forth in the remedy section
of this decision.
(b) On request, bargain in good faith with District 1199
WV/KY/OH, Service Employees International Union, AFL–
CIO–CLC as the exclusive representative of employees in
the unit described above concerning terms and conditions of
employment and, if an understanding is reached, embody it
in a signed agreement.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Cincinnati, Ohio, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.