Parkview Manor

National Labor Relations Board - Board Decisions

Jun 14, 1996

321 N.L.R.B. 477 (N.L.R.B. 1996)

477
321 NLRB No. 68
PARKVIEW MANOR
1 307 NLRB 877 (1992), petition for review denied sub nom. Elec-
trical Workers UE v. NLRB, 986 F.2d 70 (4th Cir. 1993).
2 See Williams Enterprises, 312 NLRB 937, 938–939 (1993), enfd.
50 F.3d 1280 (4th Cir. 1995), and cases cited there.
The Respondent’s reliance on Newell Porcelain, supra, is mis-
placed. In Newell Porcelain, a company obligated to bargain with a
newly affiliated union made a good-faith, albeit unsuccessful, effort
during negotiations to ascertain that it was in fact negotiating with
that union, and was held justified in suspending negotiations pending
clarification of the identity of the party with which it was negotiat-
ing. By contrast, the Respondent here made no attempt to clarify the
ambiguity and ascertain the relationship between Council 62 and
Local 1199.
3 Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941);
Cormier Hosiery Mill, 243 NLRB 19 (1979).
Sherwood Corporation d/b/a Parkview Manor and
American Federation of State, County & Mu-
nicipal Employees, Local 1199, the National
Union of Hospital and Health Care Employees.
Case 25–CA–23169
June 14, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Upon a charge filed on April 25, 1994, the General
Counsel of the National Labor Relations Board issued
a complaint and notice of hearing on May 19, 1995,
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 provide
information following the Union’s certification in Case
25–RC–9208. (Official notice is taken of the ‘‘record’’
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
denying in part the allegations in the complaint, sub-
mitting affirmative defenses, and requesting that the
complaint be dismissed in its entirety.
On January 22, 1996, the General Counsel filed a
Motion for Summary Judgment. On January 24, 1996,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse and a Cross-Motion for Summary Judgment.
The General Counsel filed an opposition to the Re-
spondent’s cross-motion. The Respondent filed a reply
to the General Counsel’s opposition.
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 raises three defenses to its refusal
to bargain and provide information. First, the Respond-
ent denies that the Union requested the Respondent to
recognize and bargain with it. In its Cross-Motion for
Summary Judgment, the Respondent argues that no
valid demand for bargaining and for information was
ever made by the Union. The Respondent contends
that a March 24, 1994 letter requesting bargaining and
information was on the letterhead of American Federa-
tion of State, County, and Municipal Employees, AFL–
CIO, Indiana AFSCME Council 62 and made no men-
tion of Local 1199, the certified bargaining representa-
tive of the Respondent’s employees. The letter con-
tained neither an explanation of the relationship be-
tween the two unions nor any reason why Council 62
was entitled to recognition. Citing Newell Porcelain
Co.,1 the Respondent argues that where a union is cer-
tified to represent an employer’s employees, the em-
ployer is required to recognize and bargain only with
that union. The Respondent contends that it had no ob-
ligation to recognize, bargain with, or supply informa-
tion to Council 62, and that Council 62 is the only en-
tity that made such requests.
We reject the Respondent’s argument that Local
1199 made no bargaining demand. We find that even
if the March 24, 1994 letter was not, in itself, a suffi-
cient demand by Local 1199, the refusal-to-bargain
charge filed by Local 1199 on April 25, 1994, refer-
ring to that letter clarified any ambiguity as to which
entity was requesting bargaining. Thus, the charge,
filed little more than 2 months from the date of the
certification, clearly alleged that Local 1199 ‘‘by letter
dated March 24, 1994, requested information from the
. . . Employer . . . and requested to bargain with the
Employer.’’ Therefore, we find that the charge, to-
gether with the letter, constituted a valid demand for
bargaining and for information.2 Accordingly, we re-
ject the Respondent’s defense.
Second, the Respondent asserts as an affirmative de-
fense the argument that the Board improperly over-
ruled the Respondent’s objections to the election and
improperly included in the bargaining unit individuals
whom the Respondent and the Union had stipulated to
be supervisors within the meaning of Section 2(11) of
the Act and whose duties show they are supervisors
under the standard enunciated in the Supreme Court’s
decision in NLRB v. Health Care & Retirement Corp.
of America, 114 S.Ct. 1778 (1994).
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances, a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a
prior representation proceeding.3
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence. However, we find that
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Supplemental Decision and Certification of Representative, Case
25–RC–9208 (Feb. 24, 1994).
As noted by the hearing officer, in directing a hearing on the su-
pervisory status of certain charge nurses notwithstanding the parties’
stipulation that they were supervisors, the Board relied on Rosehill
Cemetery Assn., 262 NLRB 1289 (1982), which held that stipula-
tions raising either statutory questions or issues affecting Board pol-
icy will not be binding on the Board. We find that the Respondent
has raised nothing requiring reexamination of that aspect of the
Board’s decision in the representation proceeding.
5 The General Counsel in his opposition has requested that, if the
Board deems it necessary to reconsider its Supplemental Decision
and Certification in Case 25–RC–9208, the parties be allowed to
submit briefs to the Board arguing the application of NLRB v. Health
Care & Retirement Corp., supra, and its progeny to the record evi-
dence. The request is denied as the record, exceptions, and briefs
adequately present the issues and the positions of the parties.
6 See Providence Hospital, 320 NLRB 717, 727 (1996).
7 Providence Hospital, supra, at 732.
8 Ten Broeck Commons, 320 NLRB 806 (1996); Providence Hos-
pital, supra.
the decision of the Supreme Court in NLRB v. Health
Care & Retirement Corp., supra, which issued subse-
quent to the underlying representation proceeding in
this case, constitutes a special circumstance requiring
the Board to reexamine its decision in the representa-
tion proceeding.4 In Health Care & Retirement Corp.,
the Supreme Court rejected the Board’s patient care
analysis for determining the supervisory status of
charge nurses and found that the Board’s construction
of the phrase ‘‘in the interest of the employer’’ was
‘‘inconsistent with both the statutory language and this
Court’s precedents.’’ (Id. at 1783.) The hearing offi-
cer’s report and recommendation, which the Board es-
sentially adopted in the representation phase of this
proceeding, used the now-discredited ‘‘patient care’’
analysis in its discussion of the supervisory indicia of
assignment and direction. Accordingly, we do not rely
on that analysis and have independently reexamined
the record in the representation proceeding in light of
the Supreme Court’s subsequent decision in Health
Care & Retirement Corp., supra.5
Our review of the record persuades us that the
charge nurse’s assignment of work and direction of
employees in this case is routine and does not require
independent judgment. For example, charge nurses
make out assignment sheets at the start of each shift
and determine which employees are assigned to which
residents. In making these assignments, the charge
nurse attempts to divide the number of residents evenly
among the employees and takes into consideration the
skills of the employees. The Board has found, how-
ever, that work assignments made to equalize work
among employees and assignments based on assess-
ment of employees’ skills, when the differences in
skills are well known, are routine functions and do not
require the exercise of independent judgment.6
Although the Employer’s handbook provides that
charge nurses have the authority to schedule rest or
meal breaks, the record indicates that this authority is
not generally exercised. Breaktimes are not
prescheduled and there is no evidence that employees
must obtain permission from the charge nurse before
taking a break. The record shows that employees are
not even uniformly required to notify the charge nurse
that they are going on break. Under such cir-
cumstances, we find that the charge nurses’ authority
to schedule breaks is limited and that even if the
charge nurses have the authority to deny an employ-
ee’s request for breaktime, this is a routine clerical
function not requiring the exercise of independent
judgment.7
Charge nurses are responsible for determining
whether an employee’s absence will put the facility
below the state-required number of nursing hours per
patient. If so, the charge nurse is responsible for call-
ing in off-duty employees to fill the vacancy. In decid-
ing which employees to call, the charge nurses con-
sider the employees’ job titles and use their own expe-
rience concerning which employees are generally will-
ing to come in. However, the record indicates that
charge nurses do not have the authority to compel an
employee to come to work or to stay overtime to cover
an absence. As the Board found in Providence Hos-
pital, supra, at 732, this is essentially a clerical func-
tion. ‘‘Assessing whether there is a high or low patient
census warranting calling in extra help or letting staff
off early is not significantly more complicated than
counting the number of patients.’’ Thus, we find that
without the authority to compel an employee to work,
the charge nurses’ responsibility to call in employees
when necessary under state law requires only routine
judgment. For these reasons we agree with the hearing
officer that the charge nurses’ limited assignment and
direction of other employees does not require the use
of independent judgment within the meaning of Sec-
tion 2(11) of the Act.8
With regard to the remaining supervisory indicia
listed in Section 2(11), the hearing officer found, and
we agree, that the charge nurses are not involved in
hiring, transferring, laying off, recalling, or adjusting
grievances. In section IV,B, of his report, the hearing
officer found, and we agree, that the charge nurses do
not have the authority to reward or promote or to ef-
fectively recommend those actions. We also adopt the
hearing officer’s findings in section IV,C, of his report
that the charge nurses do not have the authority to sus-
pend, discharge, discipline, or to effectively rec-
ommend that action.
For these reasons, we conclude that the record sup-
ports the hearing officer’s determination that the
charge nurses are not supervisors. Accordingly, we re-
affirm the Certification of Representative issued in
Case 25–RC–9208, and find this defense to the 8(a)(5)
allegations to be without merit.
479PARKVIEW MANOR
9 Ray Brooks v. NLRB, 348 U.S. 96, 101–103 (1954).
10 Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990), enfd.
939 F.2d 402 (6th Cir. 1991).
11 Den-Tal-Ez, Inc., 303 NLRB 968, 970 (1991), enfd. 986 F.2d
1409 (3d Cir. 1993).
12 The Board has held that employee social security numbers are
not presumptively relevant and that the union must therefore dem-
onstrate the relevance of such information. See Heartland of Mar-
tinsburg, 318 NLRB No. 10 (July 31, 1995) (not reported in Board
volumes). Here, the Union did not specify in its request why it want-
ed such information or otherwise demonstrate the relevance of the
information. This does not excuse, however, the Respondent’s failure
to supply all the other information requested by the Union. Such in-
formation clearly is presumptively relevant and the Respondent’s
failure to provide the information on request violated Sec. 8(a)(5) of
the Act. See id.
Third, the Respondent asserts that more than 12
months have elapsed since the Union’s certification,
that the Respondent at no time refused to recognize or
bargain with the Union, that the presumption of the
Union’s majority status is now rebuttable, and that a
majority of the employees in the bargaining unit have
submitted a petition to the Respondent stating that they
no longer wish to be represented by the Union. The
Respondent attaches a copy of the employee petition to
its answer and contends that it no longer has a duty
to recognize or bargain with the Union.
We reject the Respondent’s defense. In order to as-
sure the parties a reasonable time in which to bargain,
the Board, with judicial approval, has adopted a rule
requiring an employer, in the absence of unusual cir-
cumstances, to honor a certification for a period of 1
year.9 Where, as here, the Respondent, through its re-
fusal to bargain, has deprived the Union of that year,
the Respondent will not be allowed to take advantage
of its failure to comply with its statutory obligation. In
such cases, we construe the certification year as com-
mencing on the date on which the Respondent begins
to bargain in good faith with the Union.10 Here, be-
cause the Respondent has not yet begun to bargain in
good faith, the certification year has not expired and
the Union’s majority is irrebuttable absent unusual cir-
cumstances. An employee petition expressing a desire
to terminate representation by the certified collective-
bargaining representative does not constitute an ‘‘un-
usual circumstance’’ which would justify the Respond-
ent’s refusal to bargain under Brooks, supra.11 Accord-
ingly, the Respondent’s third defense is without merit.
Finally, we find that there are no factual issues war-
ranting a hearing regarding the Union’s request for in-
formation. The complaint alleges that by letter dated
March 24, 1994, the Union requested the following in-
formation from the Respondent:
1. A copy of the payroll to include all employ-
ees in the bargaining unit: their names, addresses,
job titles, social security numbers, dates of hire
and rates of pay;
2. A detailed listing of benefits with two (2)
copies each of pertinent documents such as pen-
sion plan, health insurance plan, life insurance,
personnel manual, etc.; and
3. Job descriptions for all job classifications in
the bargaining unit.
In its answer, the Respondent denies that the infor-
mation requested is relevant and necessary to the
Union’s role as exclusive bargaining representative of
the unit employees. It is well settled, however, that
with the exception of employee social security num-
bers, such information is presumptively relevant for
purposes of collective bargaining and must be fur-
nished on request.12
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment, deny the Respondent’s Cross-
Motion for Summary Judgment, and order the Re-
spondent to bargain and furnish the requested informa-
tion with the exception of employee social security
numbers.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Sherwood Corporation d/b/a
Parkview Manor, is a corporation with an office and
place of business in Indianapolis, Indiana, where it has
been engaged in the operation of a long-term health
care facility. During the 12-month period ending April
1, 1994, the Respondent purchased and received at its
Indianapolis, Indiana facility goods valued in excess of
$50,000 directly from points outside the State of Indi-
ana. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held January 8, 1993, the
Union was certified on February 24, 1994, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All employees employed by the Employer at its
2424 E. 46th Street, Indianapolis, Indiana facility,
including all licensed practical nurses, all graduate
practical nurses, all qualified medicine aides, all
certified nurse aides and all dietary, housekeeping,
laundry and maintenance employees and the ac-
tivities director and the medical records employ-
ees, BUT EXCLUDING all office clerical em-
ployees, all professional employees, all guards
and supervisors as defined in the Act, and exclud-
ing all supervisory charge nurses, all registered
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The Order conforms to the new standard language recently set
forth in Indian Hills Care Center, 321 NLRB 144 (1996).
14 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.’’
nurses, the respiratory therapist, the social service
designee and the bookkeeper.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about April 25, 1994, the Union has requested
the Respondent to bargain and to furnish information.
Since about the same date, the Respondent has refused
the Union’s requests. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing, at least since April 25, 1994, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union requested information, the Re-
spondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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); and Burnett Construction Co., 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER13
The National Labor Relations Board orders that the
Respondent, Sherwood Corporation d/b/a Parkview
Manor, Indianapolis, Indiana, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with American Federation of
State, County & Municipal Employees, Local 1199,
the National Union of Hospital and Health Care Em-
ployees, as the exclusive bargaining representative of
the employees in the bargaining unit, and refusing to
furnish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative of the unit employees.
(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
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 employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All employees employed by the Employer at its
2424 E. 46th Street, Indianapolis, Indiana facility,
including all licensed practical nurses, all graduate
practical nurses, all qualified medicine aides, all
certified nurse aides and all dietary, housekeeping,
laundry and maintenance employees and the ac-
tivities director and the medical records employ-
ees, BUT EXCLUDING all office clerical em-
ployees, all professional employees, all guards
and supervisors as defined in the Act, and exclud-
ing all supervisory charge nurses, all registered
nurses, the respiratory therapist, the social service
designee and the bookkeeper.
(b) Furnish the Union the information that it re-
quested with the exception of employee social security
numbers.
(c) Within 14 days after service by the Region, post
at its Indianapolis, Indiana facility, copies of the at-
tached notice marked ‘‘Appendix.’’14 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices are not altered, 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 facility involved in these pro-
ceedings, 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 Re-
spondent at any time since April 25, 1994.
(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 Respondent has taken to
comply.
481PARKVIEW MANOR
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 refuse to bargain with American Fed-
eration of State, County & Municipal Employees,
Local 1199, the National Union of Hospital and Health
Care Employees 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
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 bargaining unit:
All employees employed by us at our 2424 E.
46th Street, Indianapolis, Indiana facility, includ-
ing all licensed practical nurses, all graduate prac-
tical nurses, all qualified medicine aides, all cer-
tified nurse aides and all dietary, housekeeping,
laundry and maintenance employees and the ac-
tivities director and the medical records employ-
ees, BUT EXCLUDING all office clerical em-
ployees, all professional employees, all guards
and supervisors as defined in the Act, and exclud-
ing all supervisory charge nurses, all registered
nurses, the respiratory therapist, the social service
designee and the bookkeeper.
WE WILL furnish the Union the information that it
requested with the exception of employee social secu-
rity numbers.
SHERWOOD CORPORATION D/B/A
PARKVIEW MANOR