Sprain Brook Manor Nursing Home, LLC

National Labor Relations Board - Board Decisions

Dec 6, 2006

348 N.L.R.B. 84 (N.L.R.B. 2006)

348 NLRB No. 84
Sprain Brook Manor Nursing Home, LLC and New
York’s Health and Human Services Union
1199/SEIU. Case 2–CA–37814
December 6, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
The General Counsel seeks a summary judgment in
this case on the ground that there are no genuine issues
of material fact as to the allegations of the complaint, and
that therefore the Board should find, as a matter of law,
that the Respondent has unlawfully refused to furnish
requested information to the Union.
Pursuant to a charge filed on August 4, 2006,1 the
General Counsel issued the complaint on September 15,
2006, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing to provide informa-
tion requested by the Union following the Union’s certi-
fication in Case 2–RC–23014. (Official notice is taken
of the “record” in the representation proceeding as de-
fined 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.2
On October 13, 2006, the General Counsel filed a Mo-
tion for Summary Judgment. On October 18, 2006, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response,
and the General Counsel filed a reply to the Respon-
dent’s response.
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’s answer admits its refusal to furnish
information that is alleged to be relevant and necessary
to the Union’s role as bargaining representative, but con-
tends that the Respondent has no obligation to provide
any information to the Union because the Union was
improperly certified in the underlying representation pro-
ceeding. Thus, although the Respondent’s answer sum-
marily denies that the information requested by the Un-
ion is necessary and relevant, it is clear from its answer

1 The complaint erroneously states that the charge was filed on July
21, 2006.
2 The Respondent’s answer denies knowledge or information suffi-
cient to form a belief concerning the filing and service of the charge.
The Respondent admits, however, that a charge was filed and that it
was served with a copy of the charge in this proceeding. Further, cop-
ies of the charge and affidavit of service of the charge are included in
the documents supporting the General Counsel’s motion, showing the
dates of these documents, and the Respondent does not refute the au-
thenticity of the documents.
and response to the Notice to Show Cause that its refusal
to provide the information is based entirely on its conten-
tion that the Union’s certification is invalid.
The Board rejected the Respondent’s challenge to the
Union’s certification in its recent decision in Sprain
Brook Manor Nursing Home, 348 NLRB No. 48 (2006).
In Sprain Brook, the Board granted the General Coun-
sel’s motion for summary judgment and found that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to bargain with the Union since the Union’s
bargaining request of July 6, 2006. All representation
issues raised by the Respondent in defense to the instant
complaint allegations were or could have been litigated
in the prior representation proceeding. Therefore, for the
same reasons as set forth in Sprain Brook, we find that
the Respondent has not raised any representation issue
that is properly litigable in this unfair labor practice pro-
ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313
U.S. 146, 162 (1941).
As discussed below, we find that the information re-
quested by the Union is presumptively relevant for pur-
poses of collective bargaining. Accordingly, we find that
there are no factual issues warranting a hearing with re-
spect to the Union’s request for information, and that the
General Counsel is entitled to summary judgment as a
matter of law.3 Thus, we will order the Respondent to
furnish the Union with the information it requested, with
the exception of employee social security numbers.
On the entire record, the Board makes the following

3 In its response to the Notice to Show Cause, the Respondent ar-
gues that the instant motion “should have been filed together with the
prior refusal to bargain case” because it arises from the “same nucleus
of fact.” In addition, the Respondent contends that the Board should
defer ruling on the General Counsel’s motion until the United States
Court of Appeals issues a final decision on the Respondent’s petition
for review of the Board’s order in Sprain Brook Manor Nursing Home,
supra.
We find no merit in the Respondent’s contentions. The complaint in
the previous case involving the Respondent alleged only a general
refusal to bargain with the Union in order to test the certification issued
in Case 2–RC–23014. Thus, the instant complaint alleges substantively
different unlawful conduct that requires a remedy that was not included
in the prior proceeding. See, e.g., Clark United Corp., 319 NLRB 328,
329 fn. 2 (1995), affd. 95 F.3d 1147 (5th Cir. 1996) (Table). In any
event, the General Counsel has wide discretion in determining whether
or not to consolidate proceedings, and the Respondent has failed to
show an arbitrary abuse of that discretion. See Service Employees
Local 87 (Cresleigh Management), 324 NLRB 774 (1997). Further, it
would not be appropriate to delay ordering the Respondent to provide
the Union with relevant and necessary requested information pending
court review of our prior order requiring the Respondent to bargain
with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, with an office
and principal place of business located at 77 Jackson
Avenue, Scarsdale, New York, has been engaged in the
operation and maintenance of a nursing home.
Annually, the Respondent, in the course and conduct
of its business operations described above, derives gross
revenues in excess of $100,000 and purchases and re-
ceives goods and services valued in excess of $5000 di-
rectly from suppliers located outside the State of New
York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and is a health care institution within the
meaning of Section 2(14) of the Act.
In addition, we find that New York’s Health and Hu-
man Services Union 1199/SEIU (the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
Following the election held September 22, 2005, the
Union was certified on June 29, 2006, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time and per-diem non-
professional employees including licensed practical
nurses, certified nurses aides, geriatric techs/activity
aides, housekeeping employees, laundry employ-
ees/assistants, dietary aides, and cooks employed by the
Employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
The complaint alleges, and the Respondent admits, that
by letter dated July 6, 2006, the Union requested the fol-
lowing information:

4 The Respondent’s answer denies sufficient knowledge or informa-
tion to admit or deny the Union’s status as a labor organization. The
Respondent, however, effectively stipulated in the underlying represen-
tation proceeding that the Union is a labor organization within the
meaning of the Act. Accordingly, we find that the Respondent’s an-
swer does not raise any issue warranting a hearing with respect to this
allegation. See All American Services & Supplies, 340 NLRB 239 fn. 2
(2003).
1. Any and all documents, including but not limited to
job descriptions and performance evaluations, that de-
scribe the job duties for all bargaining unit positions.
2. For each employee working in a bargaining unit po-
sition, such documents as will show the following:
a. job title for each employee;
b. date of hire;
c. current hourly rate of pay;
d. date and amount of all wage increases and bo-
nuses granted since 2000;
e. regular hours of work;
f. number of overtime hours worked in 2003,
2004, and 2005;
g. pension vesting and benefit credits;
h. social security number; and
i. current home address.
3. Documents, including but not limited to summary
plan descriptions, that show all fringe benefits such as
health insurance, disability, pension, profit sharing, and
401(k) benefits available to or provided to part-time
and full-time employees in the bargaining unit.
4. Documents describing vacation leave, holiday leave,
sick leave, personal leave, parental leave, educational
leave, or any other benefit leaves and the amount of
such leave available on an annual basis to any and all
employees in the bargaining unit, as well as unpaid
leaves.
5. Any and all manuals or other documents, including
documents distributed to employees, that describe any
of the terms and conditions of employment for employ-
ees in the bargaining unit.
6. Any and all documents describing all disciplinary
policies, including attendance policies, currently in ef-
fect for employees in the bargaining unit.
7. Any and all documents setting forth grievance pro-
cedures applicable to employees in the bargaining unit.
8. Any and all documents setting forth procedures for
promotions, transfers, and filling vacant positions ap-
plicable to employees in the bargaining unit.
9. Any and all documents setting forth policies regard-
ing the work week and requirements that employees in
the bargaining unit work on weekends.
10. Any and all documents setting forth policies regard-
ing overtime work (both voluntary and mandatory),
shift differentials and/or any form of premium pay for
employees in the bargaining unit.
11. Any and all documents setting forth policies regard-
ing health and safety in the workplace.
SPRAIN BROOK MANOR NURSING HOME, LLC 3
12. Any and all documents setting forth policies regard-
ing uniforms and/or uniform allowances applicable to
employees in the bargaining unit.
13. Documents describing tuition or training reim-
bursement available to employees in the bargaining
unit.
14. Documents describing child care assistance or pro-
grams available to employees in the bargaining unit.
15. Documents describing housing programs available
to employees in the bargaining unit.
16. Complete copies of cost reports submitted, includ-
ing any supplemental submissions, for reimbursement
for Medicaid or for any other public entity or program
for the years 2003, 2004, and 2005.
It is well established that the foregoing types of em-
ployment information, with the exception of employee
social security numbers, are presumptively relevant for
purposes of collective bargaining and must be furnished
on request.5 See, e.g., Streicher Mobile Fueling, Inc.,
340 NLRB 994, 995 (2003), affd. 138 Fed. Appx. 128
(11th Cir. 2005); Super K-Mart, 322 NLRB 583 (1996);
Maple View Manor, 320 NLRB 1149 (1996), enfd. 107
F.3d 923 (D.C. Cir. 1997). As found above, the Respon-
dent has not provided any basis for rebutting this pre-
sumption.
Since about July 6, 2006, the Respondent has failed
and refused to furnish the Union with the information
requested by it. We find that this failure and refusal con-
stitutes an unlawful refusal to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since July 6, 2006 to provide the Union
with the information it requested on that same date, the
Respondent 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.

5 The Board has held that employee social security numbers are not
presumptively relevant and that the Union must therefore demonstrate
the relevance of such information. See, e.g., Metro Health Foundation,
Inc., 338 NLRB 802, 803 fn. 2 (2003) (summary judgment denied with
respect to social security numbers). Here, the pleadings fail to indicate
why the Union wanted the social security numbers, or to otherwise
indicate the relevance of this information. Accordingly, we cannot
conclude, on the pleadings, that the Respondent was obligated to pro-
vide this information to the Union and we therefore deny the Motion
for Summary Judgment with respect to the Respondent’s alleged failure
to do so, and remand that issue to the Regional Director for further
appropriate action. This does not excuse the Respondent’s failure to
supply all of the other information requested by the Union.
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 and to furnish the Union with the requested infor-
mation.
ORDER
The National Labor Relations Board orders that the
Respondent, Sprain Brook Manor Nursing Home, LLC,
Scarsdale, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to furnish New York’s Health and Hu-
man Services Union 1199/SEIU with information that is
relevant and necessary to the performance of its duties as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time and per-diem non-
professional employees including licensed practical
nurses, certified nurses aides, geriatric techs/activity
aides, housekeeping employees, laundry employ-
ees/assistants, dietary aides, and cooks employed by the
Employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with the information that it re-
quested in its letter dated July 6, 2006, with the exception
of social security numbers.
(b) Within 14 days after service by the Region, post at
its facility in Scarsdale, New York, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 6, 2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to furnish New York’s Health and
Human Services Union 1199/SEIU with information that
is relevant and necessary to the performance of its duties
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit.
All full-time and regular part-time and per-diem non-
professional employees including licensed practical
nurses, certified nurses aides, geriatric techs/activity
aides, housekeeping employees, laundry employ-
ees/assistants, dietary aides, and cooks employed by the
Employer at its facility located at 77 Jackson Avenue,
Scarsdale, New York, but excluding all other employ-
ees, including office clerical employees, managers and
guards, professional employees and supervisors as de-
fined by the Act.
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 furnish the Union with the information that it
requested in its letter dated July 6, 2006, with the excep-
tion of social security numbers.
SPRAIN BROOK MANOR NURSING HOME, LLC