Sandpiper Convalescent Center And Sandpiper Village

National Labor Relations Board - Board Decisions

May 29, 1986

279 N.L.R.B. 1129 (N.L.R.B. 1986)

SANDPIPER CONVALESCENT CENTER
Sandpiper Convalescent Center and Sandpiper Vil-
lage and 1199 , National Union of Hospital and
Health Care Employees , AFL-CIO. Cases 11-
CA-115 5 7 and 11-CA-11708
29 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 3 September 1985 Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The General Counsel, the Charging Party, and the
Respondent filed exceptions and supporting briefs.'
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings , findings, and
conclusions and to adopt the recommended Order
as modified.
We find in agreement with the judge that Re-
spondent violated Section 8(a)(5) by laying off unit
employees without notifying and bargaining with
the Union. However, we also find that the judge's
recommended remedy conflicts with some of his
substantive findings of fact. We note that the judge
declined to order reinstatement because the layoffs
were "for economic reasons" and the work force
did not increase after the layoffs. Yet, the judge
discussed and rejected each asserted economic
reason. Further, contrary to his statement that the
work force did not increase after the layoffs, the
record shows that the unit increased from 85 to
141 after the layoffs. Accordingly, consistent with
the judge's findings of fact, we shall order Re-
spondent to offer reinstatement to the laid-off em-
ployees. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sandpiper Convalescent Center and
Sandpiper Village, Mount Pleasant, South Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(d).
"(d) Offer Barbara Heyward, Vanessa Manigault,
Carolyn Rock, Charlene Deltgen, Yvette Camp-
' Respondent's request for oral argument is denied as the record, in-
cluding the transcripts , exhibits, and briefs , adequately presents the issues
and positions of the parties
2 University Health Care Center, 274 NLRB 764 (1985), and Schnadig
Corp, 265 NLRB 147 (1982)
1129
bell, and Delores Dingle immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with 1199, National Union of Hospital and Health
Care Employees, AFL-CIO, as the exclusive rep-
resentative of our employees in the bargaining unit
described below.
WE WILL NOT refuse to bargain collectively with
the above-named labor organization as the exclu-
sive representative of our employees in the bargain-
ing unit described below by unilaterally laying off
unit employees without notice to or consultation
with said labor organization or providing it an op-
portunity to bargain about layoffs.
WE WILL NOT refuse to bargain collectively with
the above-named labor organization as the exclu-
sive representative of our employees in the bargain-
ing unit described below by failing and refusing to
furnish it with the information requested by it in its
letters to us dated 23 April 1985 and 7 May 1985
concerning the unit employees' seniority dates,
rates of pay, wages, benefits, and related informa-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed in Section 7
of the Act.
WE WILL recognize and, on request, bargain
with the above-named labor organization, as the
exclusive representative of our employees in the
bargaining unit described below, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time service and
maintenance employees, including nursing as-
279 NLRB No. 147
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistants, dietary employees, housekeeping em-
ployees, activity aides, social service aides,
drivers, maintenance and janitorial employees
employed at the Respondent's Mt. Pleasant,
South Carolina facilities; excluding all other
employees including registered nurses, licensed
practical nurses, office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL, on request, bargain collectively and in
good faith with the above-named labor organiza-
tion as the exclusive representative of all our em-
ployees in the above-described unit concerning the
layoff of the six employees on 16 October 1984.
WE WILL bargain collectively with the above-
named labor organization by furnishing it with the
information it requested in its letters to us dated 23
April 1985 and 7 May 1985.
WE WILL offer Barbara Heyward, Vanessa Mani-
gault , Carolyn Rock, Charlene Deltgen, Yvette
Campbell, and Delores Dingle immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions , without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them, with interest.
SANDPIPER CONVALESCENT CENTER
SANDPIPER VILLAGE
Jasper C. Brown Jr., Esq., for the General Counsel.
Don T. Carmody, Esq. (Carmody & DzRlenzo), of New
York, New York, for the Respondent.
Robert S. Giolito, Esq. (Stanford, Fagan & Giolito), of At-
lanta , Georgia, for the Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS D JOHNSTON, Administrative Law Judge.
The hearing in Case 11-CA-11557 was held at Charles-
ton, South Carolina, on 20 June 1985 pursuant to an
amended charge ' filed on 11 February 1985 by 1199, Na-
tional Union of Hospital and Health Care Employees,
AFL-CIO (the Union) and a complaint issued on 20
February 1985.
On 7 August 1985 Case 11-CA-11708 in which a com-
plaint was issued on 26 July 1985 based on an amended
charge2 filed on 25 July 1985 by the Union was consoli-
dated with Case 11-CA-11557 and the facts were stipu-
lated with the parties waiving their right to a hearing.
The complaints, as amended at the hearing , allege that
Sandpiper Convalescent Center and Sandpiper Village
' The original charge in Case 11-CA-11557 was filed on 14 January
1985
z The original charge in Case li-CA-11708 was filed on 24 June 1985
(the Respondent) violated Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act) by refusing to
recognize and bargain collectively and in good faith with
the Union as the exclusive representative of the unit em-
ployees; by unilaterally and without notification to or
consultation with the Union changing the wages, hours,
and working conditions of employees in the bargaining
unit by laying off unit employees Barbara Heyward,
Vanessa Manigault, Carolyn Rock, Charlene Deltgen,
Yvette Campbell, and Delores Dingle;3 and by failing
and refusing to furnish the Union, as requested, with in-
formation necessary and relevant to the Union's perform-
ance of its function as the exclusive representative of the
unit employees , namely , the names , hiring dates , seniori-
ty dates, and wages of the unit employees and a copy of
the Respondent's benefit program including medical and
retirement plans.
The Respondent in its answers dated 1 March 1985
and 6 August 1985, as amended at the hearing, admits it
has refused to recognize and bargain collectively and in
good faith with the Union as the exclusive representative
of the unit employees; that it unilaterally and without
prior notification to or consultation with the Union
changed the wages, hours, and working conditions of
employees in the unit by laying off the six employees as
alleged, and that it failed and refused to furnish the
Union with the information it requested which it also
denies is necessary for and relevant to the Union's per-
formance of its function as the exclusive representative
of the unit employees. However, it denies the Union is
the exclusive collective-bargaining representative of the
unit employees. It also denies having any obligation: to
recognize or bargain with the Union; to have notified the
Union about the layoff; to furnish the Union the informa-
tion requested; or having violated the Act as alleged and
asserts various affirmative defenses. These affirmative de-
fenses are that- the complaints are deficient because they
do not contain a "Wherefore" or any other clause re-
questing relief; the National Labor Relations Board lacks
statutory jurisdiction or authority to have issued the
complaints prior to the resolution of a question concern-
ing representation in Case 11-RC-5229 or the date of
certification; the conduct of Sandpiper Convalescent
Center in laying off the unit employees would have oc-
curred even if the petition had not been filed in Case 11-
RC-5229; and
. . . inasmuch as, pursuant to Section 102.15 of the
Rules and Regulations of the National Labor Rela-
tions Board, Series 8, as amended, the Regional Di-
rector for Region 11 of the National Labor Rela-
tions Board (the "Regional Director") investigated
the unfair labor practice charge in Case No. 11-
CA-11557, issued the Complaint, and is and has
been responsible for further proceedings in the
above-captioned matter , all such actions are uncon-
stitutional , null and void , in that the compensation
of the Regional Director under the terms of the
"Senior Executive Service," 5 U S.C. Sec. 5381 et
3 The name of another employee , LeFaye Shaw, was deleted from the
amended complaint at the hearing
SANDPIPER CONVALESCENT CENTER
seq. results in a denial to Respondents of the Due
Process and Equal Protection Guarantees of the
Fifth Amendment to the United States Constitution.
In this regard, the Senior Executive Service injects
substantial personal, financial and other irrelevant
and impermissible interests into the administration
and enforcement of the Act by the Regional Direc-
tor, so as to offer a possible temptation to decide
with bias for or against any issues presented to the
average person performing "quasi-judicial" and "ad-
ministrative prosecutorial" functions, such as those
performed in the above-captioned matter, by the
Regional Director
The issues involved are whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unlawfully re-
fusing to recognize and bargain collectively and in good
faith with the Union; by unilaterally and without notifi-
cation to or consultation with the Union laying off the
six named unit employees; and by failing and refusing to
furnish the Union with the requested information; and
whether the affirmative defenses set forth in the answers,
as amended, and other defenses asserted by the Respond-
ent at the hearing and in its brief have merit.
On the entire record in this case4 and from my obser-
vations of the witnesses and after due consideration of
the briefs filed by the parties, I make the following5
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Sandpiper Convalescent Center, a Georgia corpora-
tion, operates a place of business located at Mt. Pleasant,
South Carolina, where it is engaged in the operation of a
convalescent center. During the 12-month periods pre-
ceding 20 February 1985, and 26 July 1985, which are
representative periods, Sandpiper Convalescent Center in
the course of its operations received gross revenues in
excess of $250,000.
Sandpiper Village, a South Carolina corporation, oper-
ates a place of business located at Mt Pleasant, South
Carolina, where it is engaged in the operation of a retire-
ment village. During the 12-month periods preceding 20
February 1985, and 26 July 1985, which are representa-
tive periods, Sandpiper Village in the course of its oper-
ations received gross revenues in excess of $250,000.
Sandpiper Convalescent Center and Sandpiper Village
constitute a joint employer in the operation of the conva-
lescent center and retirement village located at Mt
Pleasant , South Carolina, and during the 12-month
period preceding 10 September 19846 they received
4 The Respondent filed a motion dated 20 August 1985 to reopen the
record for the limited purpose of receiving into evidence an updated Jt
Exh 1 and a current list of Respondent's employees marked R Exh 22
This motion opposed by the Union is granted except that the updated Jt
Exh 1 is received as a supplement to rather than a replacement for the
original Jt Exh I which begins with an earlier date
' Unless otherwise indicated the findings are based on the pleadings,
admissions , stipulations, and undisputed evidence contained in the record
which I credit
6 All dates referred to are in 1984 unless otherwise stated
1131
goods and materials , valued in excess of $50,000, from
points located directly outside the State of South Caroli-
na.7
Sandpiper Convalescent Center and Sandpiper Village
are each employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and, based on
the above findings, I find, contrary to Respondent's
denial, that collectively, as a joint employer, the Re-
spondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
1199, National Union of Hospital and Health Care Em-
ployees, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Union's Certification as Bargaining
Representative
The record in the underlying representation case, Case
11-RC-5229, and the stipulated facts establish that pursu-
ant to a Stipulation for Certification Upon Consent Elec-
tion executed by the Respondent and the Union and ap-
proved by the Acting Regional Director for Region 11
on 10 September based on a petition for Certification of
Representative filed by the Union on 30 July an election
by secret ballot was conducted on 28 September under
the direction and supervision of the Regional Director
among the Respondent's employees in the following stip-
ulated unit:
All full-time and regular part-time service and main-
tenance employees, including nursing assistants, die-
tary employees, housekeeping employees, activity
aides, social service aides, drivers, maintenance and
janitorial employees employed at the Employer's
Mt Pleasant, South Carolina facilities; excluding all
other employees including registered nurses, li-
censed practical nurses, office clerical employees,
guards and supervisors as defined in the Act.
The results of the election as disclosed by a tally of
ballots show that out of approximately 85 eligible voters,
44 cast ballots for the Union, 35 cast ballots against the
Union, and there was I challenged ballot which was not
sufficient in number to affect the results of the election
On 5 October the Respondent filed timely objections
to conduct affecting the results of the election and subse-
quently submitted additional objections.
Following an investigation the Regional Director on 6
November issued his Report on Objections recommend-
ing approval of the withdrawal of one of the Respond-
ent's objections and overruling the remaining objections
and recommending that the Board issue a Certification of
Representative. The Respondent filed exceptions dated
29 November to the Report on Objections
7 The findings contained in this paragraph are based on the commerce
stipulation entered into by the parties in Sandpiper Convalescent Center
and Sandpiper Village, Case I1-RC-5229, by which I find they are bound
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 16 April 1985 the Board issued its Decision and
Certification of Representative in which it adopted the
Regional Director's findings and recommendations and
certified the Union as the exclusive collective-bargaining
representative of the employees in the above-described
unit.
The law is well settled that in the absence of newly
discovered and previously unavailable evidence or spe-
cial circumstances , a respondent in a proceeding alleging
a violation of Section 8(a)(5) of the Act is not entitled to
relitigate issues that were or could have been litigated in
a prior representation proceeding. See Pittsburgh Glass
Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f)
and 102.69(c) of the Board's Rules and Regulations.
An employer having stipulated to the appropriateness
of the unit in a Stipulation for Certification Upon Con-
sent Election cannot raise the issue of the appropriate-
ness of the unit in a refusal-to-bargain proceeding arising
out of the union's certification. Smith Alarm Co., 214
NLRB 501 (1974), enfd. 524 F.2d 983 (5th Cir. 1975)
Based on the Board's decision and absent as here any
newly discovered or previously unavailable evidence or
special circumstances, as admitted by the Respondent, I
am persuaded and find, contrary to the Respondent's de-
nials , that the above-described unit constitutes a unit ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act and at all times
since the election held on 28 September the Union has
been the exclusive representative of the unit employees
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
B. The Layoff
On 16 October the Respondent laid off unit employees
Barbara Heyward , Vanessa Manigault , Carolyn Rock,
Charlene Deltgen , Yvette Campbell, and Delores Dingle
Administrator Philip Waterss sent letters dated 16 Oc-
tober to each of these employees informing them as fol-
lows:
Due to recent cuts in Medicaid reimbursements,
we have found it necessary to reduce staff through
permanent layoff. We have tried to do this in an eq-
uitable way based on seniority of time employed
and hours worked, plus shift availability. We regret
to inform you that we find it necessary to perma-
nently terminate your employment. We will be glad
to assist you in applying for unemployment if you
should find this a necessary step.
Administrator Waters testified he made the decision to
permanently lay off these six part-time employees after
conferring with the Director of Nursing Jan Carter.9
According to Waters, they had to reduce the staff level
because their Medicaid reimbursements had been drasti-
cally reduced effective I October" and what he felt
8 Waters is the administrator of Sandpiper Convalescent Center
8 Carter did not testify
10 No records were proffered to show Medicaid reimbursements had
been reduced
they had to do, as discussed in his conversation with Di-
rector of Nursing Carter, was to get their staff more in
line with other nursing homes in the Charleston area and
in the State of South Carolina. Waters stated at that time
they were a good deal above those staffing levels and
with their rate cut they decided to reduce the staff to get
them within that rate and they thought the fairest thing
was to lay off people based on seniority. Waters ex-
plained he took employees who had the most seniority
who were working shifts and would not be amenable to
changing shifts and took employees who had less seniori-
ty and could not work another shift and those were the
employees who were cut first and then he went directly
on the number of hours employees had worked.
C. The Refusals to Recognize and Bargain with the
Union and to Submit Information
Union Organizer Shirley Williams testified about 22 or
23 October after learning about the layoff from one of
the employees laid off, Carolyn Rock, who had also re-
ported it to Union Representative Gordon Ayers who
told Williams, she called Administrator Waters on the
telephone, introduced herself as a representative for the
Union, and told him she was calling him in reference to
the situation involving Rock's layoff. However, Waters'
response was because the Union was not certified he did
not have to talk to her or discuss the matter with her.
Waters told her if Rock had a problem, he had an open
door policy and he would gladly discuss it with Rock
Administrator Waters acknowledged having such a
conversation with Williams whom I credit.
On 23 April 1985, shortly after the Union was certified
by the Board as the exclusive representative of Respond-
ent's unit employees, Union Organizer Williams sent Ad-
ministrator Waters the following letter:
We are writing to let you know that we are
ready to meet you as soon as possible to begin ne-
gotiations.
However to properly prepare we are requesting
that you send us the following information before
our first meeting:
1. A complete list of employees with hiring
dates or seniority dates if they are different, their
earnings for the past year, how much overtime
was paid, their hourly rate of pay, their ages and
telephone numbers.
2. A complete list of employees' benefits, and
support material e.g. employee handbook, medi-
cal plan description, and retirement plan, etc.
Please forward this information to our office
prior to the opening of the contract bargaining ses-
sion.
Please feel free to call me or Mr. Ralph Worrell
of our Union, who will be also representing our side
of the bargaining table with the Sandpiper Workers
Negotiating Committee, if you have any questions.
Looking forward to our meeting, I am.
On 7 May 1985 Organizer Williams sent Administrator
Waters a followup letter which provided as follows:
SANDPIPER CONVALESCENT CENTER
In my letter to you dated April 23, 1985, I in-
formed you that the Union was prepared to meet
with you to begin bargaining. I also requested a list
of information needed to properly prepare us for
our bargaining session with you. It has been exactly
thirteen days (13), and I have not gotten any re-
sponse from you.
Therefore, I am requesting all previous informa-
tion, some dates, and times to begin our bargaining
sessions with you If, we do not hear from you
within five (5) days, we will have no other alterna-
tive but to pursue all legal avenues on this matter.
The letter further informed Waters where to send all
correspondence and closed by informing Waters if he
had any questions, to contact Williams.
Organizer Williams denied the Respondent ever noti-
fied, consulted, or bargained with the Union about the
layoff both before or since it occurred.
Administrator Waters admits he did not notify or bar-
gain with the Union about the layoff or bargain with the
Union over anything.
The Respondent admits that about 16 October and
more particularly on 21 October it has refused to bargain
in good faith with the Union as the exclusive representa-
tive of the unit employees by unilaterally and without
prior notification to or consultation with the Union
changed wages, hours, and working conditions of unit
employees by laying off the six unit employees on 16 Oc-
tober. It also admits that the Union since 23 April 1985
has requested the Respondent recognize and bargain col-
lectively with the Union as the exclusive representative
of the unit employees with respect to their rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment and that the Respondent has refused
such requests Further, the Respondent's counsel at the
hearing held on 20 June 1985 admitted the Respondent
refused to bargain with the Union over any matters
claiming it had no legal obligation to do so and therefore
seeks to obtain judicial review of the Board's certifica-
tion of the Union pursuant to Section 10(f) of the Act.
The Respondent also admits it failed and refused to
provide the Union with the information requested by the
Union in its requests by letters dated 23 April and 7 May
1985.
Since the 16 October layoff the Respondent between
the period beginning 2 November through 18 July 1985
hired approximately 54 new employees to perform unit
work, 17 of whom are no longer employed. Two other
unit employees were also hired on 7 and 11 October lust
before the layoff occurred. Since 16 October at least 13
of these employees hired were hired in part- time posi-
tions held by those employees who were laid off on 16
October Administrator Waters denied they had in-
creased their staffing since 16 October and stated the
new employees were hired to fill vacancies which oc-
curred after the layoff Although Waters said one of the
employees laid off on 16 October, Yvette Campbell, has
1133
since been reinstated, it was not established when this oc-
curred or the job she was assigned 11
D. Analysis and Conclusions
The General Counsel contends, contrary to the denials
of the Respondent which asserted various defenses, that
the Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to recognize and bargain collectively
and in good faith with the Union, by unilaterally and
without notification to or consultation with the Union
laying off the six unit employees; and by failing and re-
fusing to furnish the Union with certain requested infor-
mation concerning the unit employees.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining , or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(5) of the Act prohibits an employer
from refusing to bargain collectively with the representa-
tive of its employees.
The statutory obligation to bargain requires the parties
to meet at reasonable times and confer in good faith with
respect to rates of pay, wages, hours of employment, and
other conditions of employment.
The law is well established that an employer, whether
unlawfully motivated or not, violates Section 8(a)(5) and
(1) of the Act when it makes changes in terms and con-
ditions of employment during the pendency of objections
to an election which eventually results in the certifica-
tion of the union. Mike O'Connor Chevrolet-Buick-GMC
Co., 209 NLRB 701, 704 (1974), enf. denied on other
grounds 512 F.2d 684 (8th Cir. 1975) This obligation in-
cludes laying off employees without notice to or bargain-
ing with the union . Clements Wire & Mfg. Co., 257
NLRB 1058 (1981) The Board in discussing the obliga-
tion to bargain over layoffs in the Clements Wire case
stated at 1059 that "Although an employer may properly
decide an economic layoff is required, once such a deci-
sion is made the employer must notify the Union, and,
upon request, bargain with it concerning the layoffs, in-
cluding the manner in which the layoffs and any recalls
are to be effected."
While "compelling economic considerations" could
justify a unilateral change which might otherwise be pro-
hibited, economic expediency or sound business consider-
ations are insufficient defenses to justify unilateral
changes in terms and conditions of employment. Van
Dorn Plastic Machinery Co., 265 NLRB 864, 865 (1982),
enfd. in part as modified 736 F.2d 343 (6th Cir 1984).
The above findings establish and the Respondent
admits that on 16 October the Respondent laid off em-
ployees Barbara Heyward, Vanessa Manigault, Carolyn
Rock, Charlene Deltgen , Yvette Campbell, and Delores
Dingle . This layoff of the six unit employees occurred
after the Union had been selected by the unit employees
to be their exclusive collective- bargaining representative
in a Board -conducted election held on 28 September but
while objections to the conduct of the election filed by
" The Respondent's records reflect a Yvette Campbell was rehired on
12 January 1985 and a Delores Dingle was rehired on 20 July 1985 both
as nursing assistants
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent were still pending. Those objections
however were subsequently overruled and the Union on
16 April 1985 was certified by the Board as the exclusive
collective-bargaining representative of the unit employ-
ees. Prior to the layoff the Respondent did not notify,
consult, or bargain with the Union about the layoff
When the Union, on learning of the layoff, sought to
bargain with the Respondent over it, the Respondent re-
fused on the grounds the Union was not certified as the
bargaining representative.
Administrator Waters' asserted reasons for the layoff
(that there was a cut in Medicaid reimbursements effec-
tive 1 October and the need to get their oversized staff
more in line with other nursing homes ) were unsupport-
ed by any evidence to show any Medicaid reimburse-
ment cuts have actually occurred or that its own staff
was larger than those of other similar size nursing
homes. Moreover, beginning shortly after the layoff, a
substantial number of new employees were hired to per-
form unit work and two unit employees had also been
hired between the effective date of the Medicaid cut on
1 October and the layoff on 16 October Under these cir-
cumstances, although the layoff could be attributed to
economic reasons there were no "compelling economic
considerations," as urged by the Respondent in its brief,
to justify the Respondent 's unilateral action in laying off
the employees when it did.
The findings, supra, also establish and the Respondent
admits that since 23 April 1985 the Union has requested
the Respondent to recognize and bargain collectively
with the Union as the exclusive representative of the unit
employees with respect to their rates of pay, wages,
hours of employment, and other terms and conditions of
employment and that the Respondent has refused such
requests.
The Respondent raised five affirmative defenses in the
amended answers which are now discussed.
The Respondent asserts the complaints are deficient
because they do not contain a "Wherefore" or any other
clause requesting relief. Section 102.15 of the Board's
Rules and Regulations, which defines the required con-
tents of a complaint, does not require the relief sought to
be specified in the complaint. Because there is no re-
quirement that a complaint issued under the Act must
specify the relief sought, the amended complaints are not
deficient and this defense lacks merit and is rejected.
Further, the Respondent was fully apprised at the hear-
ing by the General Counsel of the remedy being sought.
The defense again raised in its brief that the Board
lacked statutory jurisdiction to have issued the complaint
prior to the resolution of a question concerning represen-
tation in the underlying representation case, Case 11-
RC-5229, was previously rejected as lacking merit by
Administrative Law Judge J. Pargen Robertson in an
order issued on a prehearing motion filed by the Re-
spondent, which was opposed by the General Counsel.
Moreover , the Respondent 's argument in its brief that
under Summer & Co. v. NLRB, 419 U S. 301 (1974), a
union must first be certified before any obligation to bar-
gain arises is misplaced because Summer does not in-
volve the issue of certification as in the instant case but
rather deals with the refusal to accept evidence of major-
ity status other than the results of a Board election.
The defense's assertion that the conduct of Sandpiper
Convalescent Center in laying off the unit employees
would have occurred even if the petition had not been
filed in Case II-RC-5229 lacks merit and is also reject-
ed Both the occasion given for and the layoff itself oc-
curred after the employees had already selected the
Union as their exclusive bargaining representative and at
a time the Respondent was obligated to bargain with the
Union and, as previously noted, there were no compel-
ling economic considerations to justify the Respondent's
unilateral action in laying off the employees when it did.
The defense that both the decision to lay off employ-
ees and the effects of such decision are not mandatory
subjects of bargaining under any circumstances is reject-
ed based on the applicable law set forth above. Further,
contrary to the Respondent's argument in its brief that
the complaint is deficient, the complaint on its face suffi-
ciently alleges the Respondent refused to bargain with
the Union by laying off the six named employees.
The remaining affirmative defense raised in the amend-
ed answer that the actions of the Regional Director are
unconstitutional and null and void on the grounds the
compensation of the Regional Director under the Senior
Executive Service results in a denial of the Respondent
of the due process and equal protection guaranteed by
the fifth amendment of the United States Constitution is
also rejected. The constitutionality of the Senior Execu-
tive Service, as applied to the compensation of NLRB
Regional Directors in the performance of their duties,
has been held lawful. NLRB v. Ohio New & Rebuilt
Parts, 760 F.2d 1443 (6th Cir 1985)
The Respondent in its brief raised additional defenses
which I have considered and reject as lacking merit. Its
claim that it is not a joint employer ignores its own stip-
ulation that it is a joint employer by which it is bound.
The fact there has been a turnover of employees would
not, as urged by the Respondent, relieve it of its bargain-
ing obligation during the initial certification year since
there exists, absent special circumstances, an irrebuttable
presumption that the majority status of a certified union
continues for 1 year from the date of certification and
the factor of employee turnover does not establish that a
union has lost its majority status as new employees are
presumed to support the union in the same ratio as those
whom they have replaced. Dynamic Machine Co., 221
NLRB 1140, 1142 (1975), enfd. 552 F.2d 1195 (7th Cir.
1977).
Based on the above findings and having rejected the
Respondent's defenses, I find the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing since 23
April 1985 to recognize and bargain collectively with the
Union as the exclusive representative of the unit employ-
ees with respect to their rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, and by unilaterally laying off unit employees Bar-
bara Heyward, Vanessa Manigault, Carolyn Rock, Char-
lene Deltgen, Yvette Campbell, and Delores Dingle on
16 October 1984 without prior notice to or bargaining
with the Union.
SANDPIPER CONVALESCENT CENTER
The remaining issue to be resolved is whether the Re-
spondent unlawfully refused to furnish the Union with
certain information it requested.
The law is well established that a union , obligated to
represent bargaining unit employees with respect to their
terms and conditions of employment , is entitled to such
information from the employer as may be relevant and
reasonably necessary for the proper execution of that ob-
ligation not only for the purpose of negotiating a con-
tract but also for the purpose of administering a contract.
Westinghouse Electric Corp., 239 NLRB 106, 107 ( 1978),
enfd. as modified 648 F . 2d 18 (D . C. Cir 1981 ). The test
for determining a union 's need for such information is a
showing of "probability that the desired information was
relevant , and that it would be of use to the union in car-
rying out its statutory duties and responsibilities " NLRB
v. Acme Industrial Co, 385 U . S 432 , 437 (1967). Informa-
tion on such matters as wages, fringe benefits , and em-
ployment data concerning unit employees is presumptive-
ly relevant for purposes of collective bargaining and
must be provided on request to the employees ' bargain-
ing representative . Bauer Welding, 256 NLRB 39, 40
(1981), enf. denied and remanded on other grounds 676
F 2d 314 (8th Cir . 1982); and Eskimo Radiator Mfg. Co.,
255 NLRB 304, 306 ( 1981), enfd . 688 F 2d 1315 (9th Cir
1982)
The above findings establish on 23 April 1985 the
Union by letter requested the Respondent , for purposes
of preparing for negotiations , furnish it with the names
of the unit employees , their hire date or (seniority date if
different), their earnings for the past year , including the
amount of overtime paid , their hourly pay rates, their
ages and telephone numbers, and a complete list of em-
ployee benefits and support material such as the employ-
ee handbook , medical plan description , and retirement
plan Notwithstanding such request, which was renewed
in a letter dated 7 May 1985 , the Respondent admittedly
did not furnish such information to the Union Although
the Respondent denies in its answer such information
was necessary for and relevant to the Union 's perform-
ance of its function as the exclusive bargaining represent-
ative , I find such information to be presumptively rele-
vant for that purpose and the Respondent has not at-
tempted to rebut the relevance of this information sought
by the Union
Under these circumstances , I find that the Respondent,
by failing and refusing since 23 April 1985 to provide the
information requested by the Union in its letters dated 23
April and 7 May 1985, violated Section 8(a)(5) and (1) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, found to constitute unfair labor practices af-
fecting commerce occurring in connection with the oper-
ations of the Respondent, described in section I, above,
have a close, intimate , and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1135
1. Sandpiper Convalescent Center and Sandpiper Vil-
lage each and collectively as a point employer are em-
ployers engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. 1199, National Union of Hospital and Health Care
Employees , AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part -time service and main-
tenance employees, including nursing assistants, dietary
employees, housekeeping employees, activity aides, social
service aides, drivers, maintenance and janitorial employ-
ees employed at the Respondent's Mt. Pleasant, South
Carolina facilities; excluding all other employees, includ-
ing registered nurses , licensed practical nurses, office
clerical employees, guards and supervisors as defined in
the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4 The Union at all times material herein has been and
is now the certified and exclusive representative of the
employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By refusing to bargain collectively with the Union
as the exclusive representative of all its employees in the
above-described unit, and by unilaterally laying off unit
employees Barbara Heyward, Vanessa Manigault, Caro-
lyn Rock, Charlene Deltgen, Yvette Campbell, and De-
lores Dingle on 16 October 1984 without notice to or
consultation with the Union or providing the Union an
opportunity to bargain about it, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By refusing since 23 April 1985 to recognize and
bargain collectively with the Union as the exclusive rep-
resentative of all its employees in the above-described
unit , the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and ( 1) of the
Act.
7. By refusing since 23 April 1985 to bargain collec-
tively with the Union as the exclusive representative of
all its employees in the above-described unit and by fail-
ing and refusing to furnish the Union with the informa-
tion it requested in its letters to the Respondent dated 23
April 1985 and 7 May 1985, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act Accordingly,
the Respondent shall be ordered to recognize and on re-
quest bargain collectively with the Union as the exclu-
sive representative of all the employees in the appropri-
ate unit and, if an understanding is reached, embody such
understanding in a signed agreement The Respondent
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall also be ordered to furnish the Union the informa-
tion it requested in its letters dated 23 April 1985 and 7
May 1985. To remedy the Respondent's layoff of the six
unit employees without notice to or consultation or bar-
gaining with the Union, the Respondent is ordered, on
request, to bargain with the Union concerning the layoffs
of Barbara Heyward, Vanessa Manigault, Carolyn Rock,
Charlene Deltgen, Yvette Campbell, and Delores Dingle
on 16 October 1984 and to restore the status quo ante.
Because the Respondent hired two unit employees
after the 1 October 1984 effective date of the reduction
in Medicaid reimbursements, which was one of the rea-
sons asserted for the layoff, but before the layoff itself
occurred and then, beginning shortly after the layoff,
began hiring new unit employees , it has engaged in ac-
tions which detract from the validity of any claim that
the layoff, even for economic reasons , had to occur
before the Respondent fulfilled its bargaining obligation
with the Union over the layoff (during which period
those employees would have continued to work). There-
fore to restore the status quo ante the Respondent shall
make the six named employees whole12 by paying them
their normal wages from the date of their layoff until the
date those employees, if any, have been since rehired and
for the employees who have not been rehired until the
earliest of the following conditions are met: (1) mutual
agreement is reached with the Union relating to the sub-
ject of the layoff about which the Respondent is required
to bargain ; (2) good-faith bargaining results in a bona
fide impasse; (3) the failure of the Union to commence
negotiations within 5 days of receipt of the Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of the Union to bargain in good
faith.13 Backpay shall be computed in accordance with
the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co., 138 NLRB 716 (1962).
To ensure that the unit employees are accorded the
services of their selected bargaining representative for
the period provided by law, the initial period of the cer-
tification shall be construed as beginning on the date the
Respondent begins to bargain in good faith with the
Union as the exclusive bargaining representative in the
appropriate unit . See Mar-Jac Poultry Co., 136 NLRB
785 (1962); and Lamar Hotel, 140 NLRB 226, 229 (1962),
enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S.
817 (1964).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
's Because the layoff itself was for economic reasons and the size of
the reduced staff following the layoff has not been increased, which
would indicate the necessity for laying off a certain number of employ-
ees, I find a reinstatement order , as urged by the General Counsel and
the Union , would not be appropnate
's See Gulf States Mfrs. Inc, 261 NLRB 852, 853 (1982), enfd in part
and remanded in pertinent part 704 F 2d 1390 (5th Cir 1983)
14 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
ORDER
The Respondent, Sandpiper Convalescent Center and
Sandpiper Village, Mount Pleasant, South Carolina, its
officers, agents , successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with 1199, Nation-
al Union of Hospital and Health Care Employees, AFL-
CIO as the exclusive representative of all its employees
in the unit described below by unilaterally laying off unit
employees without notice to or consultation with the
labor organization or providing it an opportunity to bar-
gain about layoffs.
(b) Refusing to recognize and bargain collectively con-
cerning rates of pay, wages, hours, and other terms and
conditions of employment with the Union as the exclu-
sive representative of its employees in the unit described
below.
(c) Refusing to bargain collectively with the Union as
the exclusive representative of its employees in the unit
described below by failing and refusing to furnish it with
the information requested by it in its letters to the Re-
spondent dated 23 April and 7 May 1985 concerning the
unit employees' seniority dates, rates of pay, wages, ben-
efits, and related information.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
nghts 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 collectively and in good faith
with 1199, National Union of Hospital and Health Care
Employees, AFL-CIO as the exclusive representative of
all its employees in the unit described below concerning
the layoff of the six employees on 16 October 1984. The
appropriate unit is:
All full-time and regular part -time service and main-
tenance employees, including nursing assistants, die-
tary employees, housekeeping employees, activity
aides, social service aides, drivers, maintenance and
janitorial employees employed at the Respondent's
Mt. Pleasant, South Carolina facilities; excluding all
other employees, including registered nurses, li-
censed practical nurses, office clerical employees,
guards and supervisors as defined in the Act.
(b) Recognize and, on request, bargain with the Union
as the exclusive representative of all its employees in the
aforesaid appropriate unit with respect to rates of pay,
wages , hours, and other terms and conditions of employ-
ment , and, if an understanding is reached, embody such
understanding in a signed agreement.
(c) Bargain collectively with the Union by furnishing
it with the information it requested in its letters to the
Respondent dated 23 April and 7 May 1985
(d) Make whole employees Barbara Heyward, Vanessa
Manigault , Carolyn Rock, Charlene Deltgen, Yvette
Campbell, and Delores Dingle laid off on 16 October
1984 for any loss of pay suffered as the result of its un-
lawful conduct in the manner set forth in the remedy
section of this decision.
SANDPIPER CONVALESCENT CENTER 1137
(e) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its Mt. Pleasant , South Carolina facilities
copies of the attached notice marked "Appendix." I s
Copies of the notice, on forms provided by the Regional
15 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 "
Director for Region 11, after being signed by the Re-
spondent 's authorized representative , shall be posted by
the Respondent immediately upon receipt 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 Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended complaints
are dismissed insofar as they allege unfair labor practices
not specifically found herein.