1621 Route 22 West Operating Company LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center.

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 1866 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 153
1866
1621 Route 22 West Operating Company, LLC d/b/a
Somerset Valley Rehabilitation and Nursing
Center and 1199 SEIU United Healthcare
Workers East, New Jersey Region. Case 22–
CA–064426
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on September 13,
2011, the Acting General Counsel issued the complaint
on October 18, 2011, alleging that the Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing
the Union’s request to bargain following the Union’s
certification in Case 22–RC–03139. (Official notice is
taken of the “record” in the representation proceeding as
defined in the Board’s Rules and Regulations, Secs.
102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint,
and asserting an affirmative defense.
On November 10, 2011, the Acting General Counsel
filed a Motion for Summary Judgment. On November
14, 2011, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response.
Pursuant to the provisions of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National La-
bor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel..1
Ruling on Motion for Summary Judgment
The Respondent’s answer denies that it has refused to
bargain with the Union and to furnish information that is
relevant and necessary to the Union’s role as bargaining
representative, and further states that in light of its mo-
tion for reconsideration in the underlying representation

1 Chairman Pearce, who is recused and did not participate in the un-
derlying decision, is a member of the present panel but did not partici-
pate in deciding the merits of this proceeding.
In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme
Court left undisturbed the Board’s practice of deciding cases with a
two-member quorum when one of the panel members has recused
himself. Under the Court’s reading of the Act, “the group quorum
provision [of Sec. 3(b)] still operates to allow any panel to issue a deci-
sion by only two members if one member is disqualified.” New Pro-
cess Steel, 130 S.Ct. at 2644; see also Correctional Medical Services,
356 NLRB 277, 277 fn. 1 (2010).
proceeding, it “specifically reserves and does not waive
its right to refuse to bargain to test certification in the
event Respondent’s Motion for Reconsideration should
be denied.”2 In addition, in its response to the Notice to
Show Cause, the Respondent contends that a material
issue of fact exists warranting a hearing regarding the
validity of the Union’s request for bargaining. Specifi-
cally, the Respondent maintains that the August 31, 2011
letter sent by the Union’s attorney to the Respondent
does not constitute a valid request for bargaining because
the letter was sent directly to the Respondent, rather than
its attorney, in violation of the rules of professional eth-
ics and therefore it is invalid and void from its inception.
We find that neither the Respondent’s denial of the al-
legation that it has refused to bargain with the Union nor
its assertion that the Union’s request for bargaining is
invalid raises a genuine issue of material fact in warrant-
ing a hearing. It is undisputed that the Respondent and
its attorney were put on notice by the Union’s August 31,
2011 letter that the Union sought to meet and bargain
over terms and conditions of employment for the bar-
gaining unit employees pursuant to the Union’s certifica-
tion as the collective-bargaining representative of those
employees.3 Further, despite the Respondent’s denial in
its answer of the allegation that it has refused to bargain,
and its contention that it “specifically reserves” its right
to test certification, nowhere in its answer or response to
the Notice to Show Cause does the Respondent assert
that it has offered to meet and bargain with the Union.
On the contrary, it is clear from the other denials in the
Respondent’s answer and its argument in its response
that the Respondent is in fact refusing to bargain with the
Union in order to test its certification.4
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

2 Respondent’s answer, p. 3. On November 16, 2011, the Board is-
sued an Order denying the Respondent’s motion for reconsideration in
Case 22–RC–013139. (An Order correcting the November 16 Order
issued on November 17, 2011.) The Respondent also filed a motion for
special permission to appeal the Regional Director’s decision to process
Case 22–CA–064426, arguing that the case should not have been pro-
cessed until the pending motion for reconsideration was resolved. By
letter dated November 21, 2011, the Associate Executive Secretary
informed the Respondent that its request for special permission to ap-
peal was moot.
3 The Respondent’s assertion that the Union’s attorney violated
State rules of professional conduct by sending this letter directly to the
Respondent rather than to its attorney is immaterial in this proceeding
because the Board has no jurisdiction over such matters.
4 See, e.g., Sprain Brook Manor Nursing Home, 348 NLRB 851,
852 fn. 5 (2006), and Indeck Energy Services of Turners Falls, 318
NLRB 321, 321 (1995).
SOMERSET VALLEY REHABILITATION & NURSING CENTER

1867
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).5
We also find that there are no factual issues warranting
a hearing with respect to the Union’s request for infor-
mation. By letter dated August 31, 2011, the Union re-
quested the following information from the Respondent:

1. The names, job title, date of hire, regular hours of
work, hourly rate of pay and home address for all em-
ployees in the collective-bargaining unit certified by the
NLRB; and
2. Copies of daily work schedules for all nursing units
for the month of August 2011.

It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request. See, e.g.,
Metro Health Foundation, Inc., 338 NLRB 802 (2003).
The Respondent has not asserted any basis for rebutting
the presumptive relevance of this information.6 Accord-
ingly, we grant the Motion for Summary Judgment, and
will order the Respondent to bargain with the Union and
to furnish the Union the information requested.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been en-
gaged in the business of operating a rehabilitation center
and nursing facility in Bound Brook, New Jersey (the
Bound Brook facility), providing health care and related
services.7 During the 12-month period preceding the

5 Member Hayes dissented from the Board’s Decision and Certifica-
tion of Representative in the underlying representation proceeding. He
would have sustained the Employer’s Objection 1, and set aside the
election results. While Member Hayes remains of that view, he agrees
that the Respondent has not has not presented any new matters that are
properly litigable in this unfair labor practice case. See Pittsburgh
Plate Glass Co. v. NLRB, supra. In light of this, and for institutional
reasons, Member Hayes agrees with the decision to grant the motion for
summary judgment.
6 In so finding, we construe the Union’s request for the information
in par. 2 of its request as pertaining to unit employees, although the
request is not specifically described as such. See Metro Health Foun-
dation, supra at 803 fn. 2.
7 The Respondent denies the allegation in complaint par. 2(a) that it
is a corporation. However, it admits that it is engaged in commerce
issuance of the complaint, the Respondent, in conducting
its business operations described above, derived gross
revenues in excess of $100,000 and during the same pe-
riod of time, purchased and received at its Bound Brook
facility goods and services valued in excess of $50,000
directly from suppliers located outside the State of New
Jersey. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and a health care institution with-
in the meaning of Section 2(14) of the Act.
We find that 1199 SEIU United Healthcare Workers
East, New Jersey Region, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held September 2, 2010, the
Union was certified on August 26, 2011, 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 nursing assistants, housekeepers, reha-
bilitation technicians, dietary cooks, dietary aides,
laundry aides, recreation assistants, unit secretaries,
medical records coordinators, maintenance workers,
porters and receptionists employed by the Employer at
its Bound Brook, New Jersey location, but excluding
all office clerical employees, registered nurses, dieti-
cians, physical therapists, physical therapy assistants,
occupational therapists, occupational therapy assistants,
speech therapists, social workers, staffing coordinators,
payroll/benefits coordinators, all other professional
employees, guards and supervisors as defined in the
Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
Since August 31, 2011, and September 12, 2011, the
Union has requested the Respondent to bargain, and
since August 31, 2011, the Union has requested the Re-
spondent to furnish information. Since August 31, 2011,
the Respondent has refused to do so. We find that this
failure and refusal constitutes an unlawful failure and
refusal to recognize and bargain with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act.

within the meaning of the Act. Accordingly, this denial does not raise
any issue of fact warranting a hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1868
CONCLUSION OF LAW
By refusing since August 31, 2011, to recognize and
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit and to furnish the Union requested infor-
mation, the Respondent has engaged in unfair labor prac-
tices 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 shall also order the Respond-
ent 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 initial period of the certifi-
cation 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, 1621 Route 22 West Operating Company,
LLC d/b/a Somerset Valley Rehabilitation and Nursing
Center, Bound Brook, New Jersey, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
1199 SEIU United Healthcare Workers East, New Jersey
Region, as the exclusive collective-bargaining repre-
sentative 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 bargaining rep-
resentative 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, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All full-time and regular part-time and per diem non-
professional employees including licensed practical
nurses, certified nursing assistants, housekeepers, reha-
bilitation technicians, dietary cooks, dietary aides,
laundry aides, recreation assistants, unit secretaries,
medical records coordinators, maintenance workers,
porters and receptionists employed by the Employer at
its Bound Brook, New Jersey location, but excluding
all office clerical employees, registered nurses, dieti-
cians, physical therapists, physical therapy assistants,
occupational therapists, occupational therapy assistants,
speech therapists, social workers, staffing coordinators,
payroll/benefits coordinators, all other professional
employees, guards and supervisors as defined in the
Act.

(b) Furnish the Union with the information it requested
on August 31, 2011.
(c) Within 14 days after service by the Region, post at
its facility in Bound Brook, New Jersey, copies of the
attached notice marked “Appendix.”8 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 22, after being signed by the Respondent’s author-
ized 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. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means.9 Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed its 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 August 31, 2011.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

8 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.”
9 As stated in his dissenting opinion in J. Picini Flooring, 356 NLRB
11 (2010), Member Hayes disagrees with the Board’s decision to re-
quire electronic distribution of the notice. He acknowledges, however,
that extant Board law requires it. Accordingly, for institutional reasons,
and in the circumstance of this proceeding, he joins with Member
Becker in ordering this remedy.
SOMERSET VALLEY REHABILITATION & NURSING CENTER

1869
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 fail and refuse to recognize and bargain
with 1199 SEIU United Healthcare Workers East, New
Jersey Region, as the exclusive collective-bargaining
representative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union information
that is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:

All full-time and regular part-time and per diem non-
professional employees including licensed practical
nurses, certified nursing assistants, housekeepers, reha-
bilitation technicians, dietary cooks, dietary aides,
laundry aides, recreation assistants, unit secretaries,
medical records coordinators, maintenance workers,
porters and receptionists employed by us at our Bound
Brook, New Jersey location, but excluding all office
clerical employees, registered nurses, dieticians, physi-
cal therapists, physical therapy assistants, occupational
therapists, occupational therapy assistants, speech ther-
apists, social workers, staffing coordinators, pay-
roll/benefits coordinators, all other professional em-
ployees, guards and supervisors as defined in the Act.

WE WILL furnish the Union the information it request-
ed on August 31, 2011.
1621 ROUTE 22 WEST OPERATING COMPANY,
LLC D/B/A SOMERSET VALLEY
REHABILITATION AND NURSING CENTER