Troy Hills Nursing

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1465 (N.L.R.B. 1998)

TROY HILLS NURSING HOME 1465
STB Investors, Ltd. d/b/a Troy Hills Nursing Home
and Local 1115-New Jersey-North, SEIU, AFL–
CIO, CLC. Case 22–CA–22631
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Pursuant to a charge filed on April 4, 1998,1 the Acting
General Counsel of the National Labor Relations Board
issued a complaint on June 4, 1998, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing the Union’s re-
quest to bargain and to provide information following the
Union’s certification in Case 22–RC–11473. (Official
notice is taken of the “record” in the representation pro-
ceeding 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 and an
amended answer admitting in part and denying in part
the allegations in the complaint.
On July 10, 1998, the Acting General Counsel filed a
Motion for Summary Judgment. On July 14, 1998, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. On August 3, 1998, the Respon-
dent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its amended answer and response the Respondent
admits its refusal to bargain and to furnish information,
but attacks the validity of the certification on the ground
that the Board improperly found that the unit LPNs are
not statutory supervisors. In addition, the Respondent in
its amended answer denies that the information requested
by the Union is necessary and relevant.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Our dissenting colleague asserts that the Board incor-
rectly denied review in the underlying representation
case. Because he believes that the Board is obligated to
“give each record a full and careful review” in cases rais-
ing issues regarding the supervisory status of charge
nurses, he would not grant the Motion for Summary
Judgment. In denying review in the representation case,
however, we determined that the Respondent had identi-
fied no substantial issue either of fact or of law regarding
the Regional Director’s determination, after his review of
the record, that the RN and LPN charge nurses in this
case are not supervisors. To reverse our determination at
this stage would be contrary to our long-settled policy
not to allow the parties to relitigate representation case
issues in “test of certification” unfair labor practice pro-
ceedings, absent newly discovered or previously unavail-
able evidence or special circumstances. Pittsburgh Plate
Glass, supra.

1 Although the Respondent’s amended answer to the complaint de-
nies that the charge was filed and served on the Respondent on April 4,
1998, a copy of the charge and letter notifying the Respondent of the
charge is attached to the motion for summary judgment, and the Re-
spondent has not challenged the authenticity of those documents in
response to the Notice to Show Cause.
Further, our dissenting colleague selectively cites the
decisions of the Fourth and Sixth Circuits. He fails to
acknowledge that the Board’s position on the supervisory
status of charge nurses has been upheld by the Eighth,
Ninth, and District of Columbia Circuits. Lynwood
Health Care Center, Minnesota, Inc. v. NLRB, 148 F.3d
1042 (8th Cir. 1998), enfg. 323 NLRB No. 200 (1997)
(not reported in Board volumes); Grandview Health
Care Center v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997),
enfg. 322 NLRB No. 54 (Oct. 15, 1996) (not reported in
Board volumes); Providence Alaska Medical Center v.
NLRB, 121 F.3d 548 (9th Cir. 1997), enfg. 321 NLRB
No. 100 (July 10, 1996) (not reported in Board volumes).
Moreover, in Passavant Retirement & Health Center v.
NLRB, 149 F.3d 243 (3d Cir. 1998), denying enf. 323
NLRB 598 (1997), also cited by our dissenting col-
league, the Third Circuit Court of Appeals specifically
stated that it was “not creating a per se rule that LPNs are
supervisors.” 149 F.3d at 249. Further, that case is fac-
tually distinguishable as the nurses there had the discipli-
nary authority to send aides home for flagrant miscon-
duct, including resident abuse, and to resolve minor
problems or “gripes” over matters covered by the aides’
collective bargaining agreement. In the instant case, the
Regional Director specifically found that the nurses “do
not have the authority to issue any serious discipline to
other staff” and that there is “no evidence” of authority to
suspend employees or adjust their grievances.
Finally, we also find there are no factual issues war-
ranting a hearing regarding the Union’s request for in-
formation. The complaint alleges that the Union re-
quested the following information from the Respondent:

1. A list of all bargaining unit employees ar-
ranged by classification and shift including names,
addresses, phone numbers, present wage rates, date
and amount of last wage increase, date of hire and
average number of hours worked per week that each
has worked during the last 12 months.
326 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1466
2. The total number of overtime hours paid each
employees for the last 12 months.
3. The total gross pay for each bargaining unit
employees for the last calendar year.
4. A copy of the staffing patterns or schedules for
all units including a shift-by-shift breakdown for
each classification in each unit as well as the staffing
patterns on weekends per unit.
5. A copy of all current job descriptions.
6. A copy of all current work rules.
7. A copy of all policies related to employment
conditions and employees’ benefits including a copy
of all employee handbooks and manuals.
8. Copies of any Summary Plan Description
Booklets or materials for all insurance plans includ-
ing premium rates and contribution rates for all cov-
erages for each of last three years; and Pension
Plans.
9. Names of employees enrolled in each insur-
ance category (employee only, employee plus 1,
family, etc.) for each Insurance Plan and Pension
Plan.
10. A copy of the Medicare and Medicaid cost
computation sheet prepared for the last two years
and submitted to the State Department of Health;
any response made thereto; issuance of any memo-
randum which sets forth the reimbursement rate es-
tablished, changed or promulgated which rate in ef-
fect during said two year period.

With the exception of the Medicare and Medicaid cost
and reimbursement information requested in paragraph
10, the foregoing types of information are clearly pre-
sumptively relevant for purposes of collective bargaining
and must be furnished on request.2
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain and to
furnish the requested information, with the exception of

2 See Maple View Manor, 320 NLRB 1149 (1996); Trustees of Ma-
sonic Hall, 261 NLRB 435 (1982); and Mobay Chemical Corp., 233
NLRB 109 (1977). The Medicare and Medicaid cost and reimburse-
ment information requested in paragraph 10 appears to seek financial
information. The Board has held that financial information is not pre-
sumptively relevant and that the union must therefore demonstrate the
relevance of the information. See Dexter Fastener Technologies, 321
NLRB 612, 613 fn. 2 (1996), and cases cited there. Here, the Union
did not specify in its request why it wanted the Medicare and Medicaid
cost and reimbursement information, and neither the complaint nor the
motion for summary judgment explain why the Respondent had an
obligation to provide the information. Cf. Taylor Hosptial, 317 NLRB
991 (1995); and Orthodox Jewish Home for the Aged, 314 NLRB 1006
(1994) (finding that employer had duty to provide union with similar
Medicare and Medicaid cost and reimbursement records given em-
ployer’s statements during negotiations regarding the need for layoffs
to remain financially healthy or the uncertainty about its sources of
revenue). We therefore deny the Acting General Counsel’s Motion for
Summary Judgment with respect to the information requested in para-
graph 10, and decline to order the Respondent to provide that informa-
tion.
the Medicare and Medicaid cost and reimbursement in-
formation requested in paragraph 10.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Parsippany, New
Jersey, has been engaged in the operation of a nursing
home providing inpatient medical care. During the 12
month period preceding the issuance of the complaint,
the Respondent, in conducting its business operations,
derived gross revenues in excess of $100,000 and pur-
chased goods valued in excess of $5000 which were re-
ceived by the Respondent at its Parsippany, New Jersey
facility directly from points outside the State of New
Jersey.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act and a health care institution within the mean-
ing of Section 2(14) 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 January 14, 1998, the Un-
ion was certified on February 10, 1998, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All technical employees including all licensed practical
nurses employed by the Employer at its Parsippany,
New Jersey facility, excluding all professional employ-
ees including registered nurses and charge nurses, all
other non-professional employees, office clerical em-
ployees, guards and supervisors as defined by the Act,
and all other employees.

The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
By letters dated February 24 and March 16, 1998, the
Union requested the Respondent to furnish certain neces-
sary and relevant information, and since about February
24, 1998, the Respondent has refused to furnish that in-
formation or to recognize and bargain with the Union as
the exclusive bargaining representative of the unit. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after February 24, 1998, 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 Respondent
TROY HILLS NURSING HOME 1467
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 Respon-
dent to furnish the Union the information requested, with
the exception of the Medicare and Medicaid cost and
reimbursement information requested in paragraph 10.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, STB Investors, Ltd. d/b/a Troy Hills Nurs-
ing Home, Parsippany, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 1115-New Jersey-
North, SEIU, AFL–CIO, CLC, as the exclusive bargain-
ing 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 exclusive bar-
gaining representative of the unit employees.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:

All technical employees including all licensed practical
nurses employed by the Employer at its Parsippany,
New Jersey facility, excluding all professional employ-
ees including registered nurses and charge nurses, all
other non-professional employees, office clerical em-
ployees, guards and supervisors as defined by the Act,
and all other employees.
(b) Furnish the Union the information that it requested
on February 24 and March 16, 1998, with the exception
of the Medicare and Medicaid cost and reimbursement
information requested in paragraph 10.
(c) Within 14 days after service by the Region, post at
its facility in Parsippany, New Jersey, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
22 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 24,
1998.
(d) 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.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from the denial of the Employer’s Request for
Review of the Regional Director’s Decision and Direc-
tion of Election, in which he found that the Employer’s
registered nurses and licensed practical nurse were not
supervisors within the meaning of the Act. Review of
the record was initially denied and here, effectively, re-
view continues to be denied. In light of the close scru-
tiny of the Board’s decisions in this area by the courts, I
believe it both appropriate and essential that where, as
here, significant issues have been raised, the Board give
each record a full and careful review. See e.g., Altercare
of Hartville v. NLRB, 129 F.3d 365 (6th Cir. 1997), de-
nying enf. 321 NLRB 847 (1996); Fair Oaks Health
Care Center v. NLRB, 148 F.3d 638 (6th Cir. 1998), de-
nying enf. 323 NLRB No. 60 (1997) (not reported in
Board volumes); Cedar Ridge Nursing Rehabilitation
Center v. NLRB, 147 F.3d 333 (4th Cir. 1998), denying
enf. 322 NLRB No. 29 (Sept. 20, 1996) (not reported in
Board volumes); Passavant Retirement & Health Center
v. NLRB, 149 F.3d. 243 (3d Cir. 1998), denying enf. 323
NLRB 598 (1998).
Accordingly, I dissent here from the granting of the
Acting General Counsel’s motion for summary judgment

3 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 BOARD 1468
in this certification-testing proceeding and the findings
that the Employer violated Section 8(a)(5) and (1) of the
Act.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Local 1115-New
Jersey-North, SEIU, AFL–CIO, CLC, as the exclusive
representative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of the unit employ-
ees.
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 bar-
gaining unit:

All technical employees including all licensed practical
nurses employed by us at our Parsippany, New Jersey
facility, excluding all professional employees including
registered nurses and charge nurses, all other non-
professional employees, office clerical employees,
guards and supervisors as defined by the Act, and all
other employees.

WE WILL furnish the Union the information it re-
quested on February 24 and March 16, 1998, with the
exception of the Medicare and Medicaid cost and reim-
bursement information requested in paragraph 10.

STB INVESTORS, LTD. D/B/A TROY
HILLS NURSING HOME