Resthaven Nursing Home

National Labor Relations Board - Board Decisions

Apr 10, 1989

293 N.L.R.B. 617 (N.L.R.B. 1989)

RESTHAVEN NURSING HOME
Norman Huggins, Receiver for Rest Haven Corpora-
tion , d/b/a Resthaven Nursing Home and Rest
Haven Corporation d/b/a Resthaven Nursing
Home and New England Health Care Employ
ees Union, District 1199 , NUHHCE, AFL-
CIO Cases 1-CA-25533 and 1-CA-25633
April 10, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On July 21, 1988, the General Counsel of the
National Labor Relations Board issued a complaint
in Case 1-CA-25533 alleging that the Respondents
have violated Section 8(a)(5) and (1) of the Nation-
al Labor Relations Act by refusing the Union's re
quest to bargain and to provide information follow
mg the Union's certification in Case 1-RC-18941
(Official notice is taken of the "record" in the rep-
resentation proceeding as defined in the Board's
Rules and Regulations, Secs 102 68 and 102 69(g),
Frontier Hotel, 265 NLRB 343 (1982)) On August
19, 1988, the General Counsel issued an amended
consolidated complaint in Cases 1-CA-25533 and
1-CA-25633, alleging that the Respondents have
violated Section 8(a)(5) and (1) by refusing to bar
gain and to supply information and by making uni
lateral changes in wages, hours, and other terms
and conditions of employment without prior notice
to or bargaining with the Union as the exclusive
representative of employees in the unit The Re
spondents filed an answer admitting in part and de-
nying in part the allegations in the amended con-
solidated complaint,' and raising certain affirmative
defenses
On October 6, 1988, the General Counsel filed a
Motion for Summary Judgment regarding the al
leged refusals to bargain and to supply information,
but not the alleged unilateral changes On October
7, 1988, 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
Respondents filed a response
t In answer to the allegations contained in pars 1 2 4 5 9 11-13 15
and 23 of the complaint the Respondents stated that they neither admit
ted nor denied the allegations and called on the Union and the Board to
prove them Sec 102 20 of the Board s Rules and Regulations however
provides that
All allegations in the complaint if no answer is filed or any allega
tion in the complaint not specifically denied or explained in an
answer filed unless the respondent shall state in the answer that he is
without knowledge shall be deemed to be admitted to be true and
shall be so found by the Board unless good cause to the contrary is
shown
In view of the Respondents failure to deny specifically the above alle
gations of the complaint we find that the Respondents have admitted
those allegations and that they are true because no good cause to the
contrary has been shown
617
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Ruling on Motion for Summary Judgment
In their answer the Respondents admit their re-
fusal to bargain and to furnish information that the
Union has requested However, they attack the va-
lidity of the certification on the basis of their objec-
tions to the Union's conduct during the election
campaign 2 In addition, the Respondents deny that
the information requested by the Union is relevant
and necessary to the performance of its function as
the representative of employees in the unit The
Respondents further assert that Norman Huggins,
as receiver for Rest Haven, is not a proper re
spondent in this proceeding The Respondents also
allege that this action was untimely filed
All representation issues raised by the Respond-
ents were or could have been litigated in the prior
representation proceeding The Respondents do not
offer to adduce at a hearing any newly discovered
and previously unavailable evidence, nor do they
allege any special circumstances that would require
the Board to reexamine the decision made in the
representation proceeding We therefore find that
the Respondents have not raised any representation
issue that is properly litigable in this unfair labor
practice proceeding See Pittsburgh Plate Glass Co
v NLRB, 313 U S 146, 162 (1941)
The Respondents deny the relevance and neces-
sity of the information sought by the Union There
is no merit to that contention The information re
quested consists of the names, addresses, telephone
numbers, and dates of hire of unit employees, rates
of pay, starting rates, rate progression, and pay
grades, shifts, hours worked per week, job descrip-
tions, descriptions and costs of health and pension
benefits provided to employees, holidays, sick
leave, and vacation rights enjoyed by employees, a
copy of the employee handbook, and copies of any
policy statements that could affect conditions of
employment Such information, as it relates to unit
employees, is presumptively relevant to collective
bargaining Hawaiian Flour Mill, 274 NLRB 1108,
1109 (1985), enfd 792 F 2d 1459 (9th Cir 1986),
Fairfield Daily Republic, 275 NLRB 7, 8-9 (1985),
enfd mem 782 F 2d 1052 (9th Cir 1986) The Re-
spondents have not rebutted this presumption or,
indeed, submitted any support for their assertion
that the information requested is not relevant and
necessary For these reasons , we find that no mate
2 Although the Respondents do not allude to the Union s conduct in
either their answer to the consolidated complaint or in their opposition to
the Motion for Summary Judgment they did raise the issue in a letter to
counsel for the General Counsel dated May 13 1988
293 NLRB No 71
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
real issues of fact exist with regard to the Respond
ents' failure to furnish the information sought by
the Union, and that the Union is entitled to the in-
formation requested to the extent that it pertains to
unit employees
Neither is there merit in the Respondents' con
tention that this proceeding is time-barred under
Section 10(b) of the Act 3 The Union made its first
request for bargaining and for information by letter
dated December 8, 1987, it made renewed requests
for bargaining and for the same information by let-
ters dated March 28 and April 14, 1988, and made
yet another request for bargaining by letter dated
June 9, 1988 The original charge in Case 1-CA-
25533 was filed on May 25, 1988, and was served
on the Respondents on June 1, a date within 6
months of the Union's first request 4 An amended
charge was filed on June 27 and served on June
28 5 A second amended charge was filed and
served on July 6, and a third amended charge was
filed the next day and served on July 11 6 Thus,
even the Union's third amended charge was served
within 6 months of its March, April, and June re
quests, each of which was ignored by the Respond-
ents Each of the Respondents' failures to respond
affirmatively to the Union's requests for bargaining
and for information on those occasions constituted
a separate and independent violation of Section
8(a)(5) within the 10(b) period Chesapeake & Poto-
mac Telephone Co, 259 NLRB 225, 230 (1981),
enfd 687 F 2d 633 (2d Cir 1982), Ocean Systems,
227 NLRB 1593, 1594 (1977), enfd 571 F 2d 859
(5th Cir 1978) 7 Consequently, this action is not
untimely
8 Sec 10(b) provides that no complaint may issue based on an unfair
labor practice occurring more than 6 months prior to the filing of the
charge and its service on the charged party
* The original charge named only Norman Huggins as the employer
However it specifically alleged a refusal to bargain re Resthaven Nurs
ing Home Under the circumstances we find that Rest Haven was on
notice by June 1 that it had been charged with a violation of the Act
s The amended charge named as the employer Norman Huggins Re
ceiver for Rest Haven Corporation d/b/a Resthaven Nursing Home
The amended charge thus indicated even more clearly that Rest Haven
had been charged with a violation
6 Each of the latter two charges named as the employer Norman
Huggins Receiver for Rest Haven Corporation and Rest Haven Corp
d/b/a Resthaven Nursing Home Rest Haven thus was explicitly
charged with a violation by July 11
The second amended charge alleged unlawful unilateral changes in
wages benefits and working conditions of unit employees but not a re
fusal to bargain and supply information The third amended charge again
alleged refusals to bargain and furnish information The allegations con
tamed in the second amended charge became the subject of the charge in
Case I-CA-25633 the General Counsel has not moved for summary
judgment on those allegations of the consolidated complaint (specifically
pars 17-21)
7 In any event a request for bargaining is considered to be continuing
at least during the certification year and the failure to respond affirma
tively to such a continuing request gives rise to a continuing violation of
Sec 8(a)(5) Southern Lumber Co 279 NLRB 187 fn 1 (1986) Dardanell
Enterprises 250 NLRB 377 379 (1980) enfd 676 F 2d 687 (3d Cir 1982)
Thus a continuing violation stemming from the Respondents refusal to
Accordingly, we grant the Motion for Summary
Judgment 8
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, Rest Haven Corporation d/b/a
Resthaven Nursing Home, a corporation, is en
gaged in the operation of a nursing home at its fa-
cility in Boston, Massachusetts During the year
ending December 31, 1987, the Respondent, in the
course and conduct of its business operations just
described, derived gross revenues in excess of
$100,000, and purchased and received at that facili
ty products, goods, and materials valued in excess
of $50,000 directly from points outside Massachu
setts We find that the Respondent is an employer
engaged in commerce within the meaning of Sec-
tion 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 October 27, 1987,
the Union was certified on December 3, 1987, as
the collective-bargaining representative of the em-
ployees in the following appropriate unit
All technical employees employed by the Em-
ployer at its Roxbury, Massachusetts location,
but excluding all other employees, guards, the
Director of Nursing, the Assistant Director of
Nursing, Nurse Supervisors, Head Nurses and
other supervisors as defined in the Act
The Union continues to be the exclusive represent
ative under Section 9 (a) of the Act
B Refusal to Bargain
Since about December 8, 1987, the Union has re-
quested the Respondent to bargain and to furnish
bargain arose no later than January 11 1988 the date 6 months poor to
the service of the Union s third amended charge
8 In the representation proceeding only Rest Haven Corporation was
named as the Employer Thus the bargaining obligation that arose on the
Union s certification and subsequent request for bargaining was the obli
gation of Rest Haven not of Respondent Norman Huggins the receiver
for Rest Haven Huggins had no such obligation except insofar as he was
an agent of Rest Haven Our Order therefore shall be issued only
against Rest Haven but it will bind Huggins if he is one of Rest Haven s
officers or agents
Because the General Counsel has not moved for summary judgement
on the allegations in Case 1-CA-25633 (concerning the Respondents al
leged unilateral changes in terms and conditions of employment of unit
employees) we shall sever that case and remand it to the Regional Di
rector for further proceedings
RESTHAVEN NURSING HOME 619
information, and, since about December 8, 1987,
and at all times thereafter, the Respondent has re-
fused We find that these refusals constitute unlaw-
ful refusals to bargain in violation of Section 8(a)(5)
and (1) of the Act
CONCLUSIONS OF LAW
By refusing on and after December 8, 1987, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit and to furnish the Union requested
information, the Respondent has engaged in unfair
labor practices affecting 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
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 Respondent 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 law, we shall construe the ini-
tial period of the certification 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, Rest Haven Corporation d/b/a
Resthaven Nursing Home, Boston, Massachusetts,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with New England
Health Care Employees Union, District 1199,
NUHHCE, 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 necessary to its role as the ex-
clusive bargaining representative of the unit em-
ployees
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, bargain with the Union as the ex
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement
All technical employees employed by the Em-
ployer at its Roxbury, Massachusetts location,
but excluding all other employees, guards, the
Director of Nursing, the Assistant Director of
Nursing, Nurse Supervisors, Head Nurses and
other supervisors as defined in the Act
(b) On request, furnish the Union information
that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit em-
ployees
(c) Post at its facility in Boston, Massachusetts,
copies of the attached notice marked `Appendix "9
Copies of the notice, on forms provided by the Re-
gional Director for Region 1, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to employees are customarily posted Reason
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
IT IS FURTHER ORDERED that Case 1-CA-25633
is severed from Case 1-CA-25533 and remanded to
the Regional Director for further proceedings
9 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 Nation
al 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
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 ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with New Eng-
land Health Care Employees Union, District 1199,
NUHHCE, AFL-CIO as the exclusive representa-
tive of the employees in the bargaining unit, and
WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exclusive bargaining representative of the unit em
ployees
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise 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 technical employees employed by the Em-
ployer at its Roxbury , Massachusetts location,
but excluding all other employees, guards, the
Director of Nursing, the Assistant Director of
Nursing , Nurse Supervisors, Head Nurses and
other supervisors as defined in the Act
WE WILL , on request , furnish the Union informa
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em
ployees
REST HAVEN CORPORATION D/B/A
RESTHAVEN NURSING HOME