Law-Den Nursing Home, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 2014

361 N.L.R.B. 119 (N.L.R.B. 2014)

LAW-DEN NURSING HOME, INC. 119
Law-Den Nursing Home, Inc. and SEIU Healthcare
Michigan. Case 07–CA–108905
August 8, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON,
AND SCHIFFER
On December 19, 2013, Administrative Law Judge Jo-
el P. Biblowitz issued the attached decision. The Gen-
eral Counsel filed exceptions.1
The National Labor Relations Board has delegated 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 has decided to affirm the
judge’s rulings, findings, and conclusions and to adopt
the recommended Order as modified2 and set forth in full
below.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 4.

“4. Since on or about March 18, April 3, and June 10,
2013, the Respondent has violated Section 8(a)(5) and
(1) of the Act by refusing to provide information as re-
quested by the Union, which information is relevant to,
and necessary for the effective performance of its role
as the collective bargaining representative of the em-
ployees described above.”

ORDER
The National Labor Relations Board orders that the
Respondent, Law-Den Nursing Home, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant to and necessary for the Union’s
1 There are no exceptions to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by refusing to furnish the Union
with requested information relevant to and necessary for the perfor-
mance of its functions as collective-bargaining representative of the
Respondent’s unit employees. The General Counsel excepts to certain
inadvertent errors in the judge’s recommended Order.
2 We shall amend the judge’s conclusions of law to conform to his
unfair labor practice findings on the dates alleged in the complaint, and
modify the recommended Order to conform to the amended conclu-
sions of law and to the Board’s standard remedial language, and in
accordance with our decisions in Excel Container, Inc., 325 NLRB 17
(1997), and J. Picini Flooring, 356 NLRB 11 (2010). We shall substi-
tute a new notice to conform to the Order as modified and in accord-
ance with our decision in Durham School Services, 360 NLRB 694
(2014).
performance of its functions as the collective-bargaining
representative of the Respondent’s 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) Furnish to the Union in a timely manner the infor-
mation requested by the Union on March 18, April 3, and
June 10, 2013.
(b) Within 14 days after service by the Region, post at
its Detroit, Michigan facility copies of the attached no-
tice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, 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. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by Respondent at any
time since March 18, 2013.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting 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.
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.”
361 NLRB No. 14

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 120
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 bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant to and necessary for the Un-
ion’s performance of its functions as the collective-
bargaining representative of our 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 furnish to the Union in a timely manner the
information requested by the Union on March 18, April
3, and June 10, 2013.
LAW-DEN NURSING HOME, INC.

Jennifer Brazeal, Esq., for the General Counsel.
C. Todd Inniss, Esq. (Inniss Law Office), for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 13, 2013, in Detroit, Michigan.
The complaint, which issued on September 19, 2013,1 and was
based upon an unfair labor practice charge that was filed on
July 9 by SEIU Healthcare Michigan, herein called the Union,
alleges that Law-Den Nursing Home, Inc., herein called the
Respondent, violated Section 8(a)(5) and (1) of the Act by re-
fusing to provide the Union with information that the Union
had requested, which information was relevant to the Union as
the bargaining representative of certain of its employees.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The complaint alleges, and the Respondent admits, that it has
been engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and has been a health care institution
within the meaning of Section 2(14) of the Act, and that the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. THE FACTS
The Union represents the following unit of employees em-
ployed by the Respondent:

All full-time and regular part-time housekeeping employees,
laundry employees, dietary employees, and certified nursing
assistants (CNAs) employed at the Employer’s facility in De-
troit, Michigan, but excluding the Director of Nursing, the
1 Unless stated otherwise, all dates referred to herein relate to the
year 2013.
Administrator, all Registered Nurses, Unit Managers, clerical
and administrative employees, supervisors and all other em-
ployees.

The most recent collective-bargaining agreement between the
parties, which is effective from January 1, 2012 through De-
cember 31, 2014, at article XIII, states:

On or about January 13, 2013, Law-Den will meet with repre-
sentatives to inform them of the current financial condition. If
the financial condition of Law-Den has improved to the extent
that Law-Den anticipates an ability to reopen wage negotia-
tions; [sic] the parties shall reconvene to consider a wage re-
negotiation on or after June 15, 2013. No party shall be obli-
gated to change wages but in good faith shall consider any
proposal. Law-Den shall not be required to engage in further
negotiations unless the economic conditions have improved.

On December 19, 2012, Serena Everett, who is employed by
the Union as an organizer, wrote to the Respondent, quoting
article XIII of the agreement, and concluding, “Please contact
me at your earliest convenience via email or fax to schedule a
date and time to meet.” On January 7, Everett sent another
email to the Respondent stating: “This is my second request to
set up a meeting to go over the financial records to see if the
financial condition of Law-Den has improved to the extent that
Law-Den anticipates an ability to reopen wage negotiations. . . .
Please contact me at your earliest convenience via email or fax
to schedule a date and time to meet.” On January 23, C. Todd
Inniss, counsel for the Respondent, wrote to Everett, inter alia:

Please accept this letter as notification pursuant to the Collec-
tive Bargaining Agreement (“CBA”) Article XIII, with my
apologies for its lateness. At this time Law-Den Nursing
Home’s (“Law-Den”) Financial condition has not improved
to allow for any renewed wage negotiation. In addition to the
continued financial difficulties discussed previously, you may
be aware that Law-Den is required to install a whole building
sprinkler system by August 2013. The cost of this system is
approximately $100,000 and the funds for same are not readi-
ly available. Law-Den is currently exploring solutions to
comply with the federal mandate. This is of course our most
paramount concern which if not solved, could force Law-Den
to cease operations. Consequently, Law-Den is unable to en-
tertain any wage considerations. Per the language and intent
of the CBA, I trust this notification is satisfactory and obviate
your request for a meeting.

On March 18, Everett wrote to Inniss, stating, inter alia:

The Contract clearly states in Article XIII . . . that Law-Den
will meet with the representatives to inform them of the cur-
rent financial condition. I would like to schedule another date
to meet so we can look over the current financial condition to
consider a wage re-negotiation on or after June 15, 2013.

The parties met at the Respondent’s facility on April 3. Ever-
ett, another union employee and two stewards were present for
the Union; Inniss was present for the Respondent. At the meet-
ing, Everett told Inniss that the Union wanted to examine the
documents stating that the Respondent had a financial loss, and
as he claimed that the Respondent was obligated to install a

LAW-DEN NURSING HOME, INC. 121
sprinkler system at a cost of $100,000, she asked to see the
documents establishing that they were required to install a
sprinkler system and the cost of installation of the system.
Inniss replied that he was not going to show her these docu-
ments. That was the extent of the meeting.
By email dated May 15 to Inniss, Everett asked to schedule a
date for a wage reopener pursuant to article XIII of the contract.
Receiving no response to this email, she sent Inniss another
email, this one dated June 10, stating, inter alia: “Although we
had a meeting discussing your financial status, you still fell
[sic] to present the documents proving your financial status.
Therefore I’m requesting (2nd request) to schedule a date for
the Wage Reopener for Law-Den Union members per the con-
tract language Article XIII.” She received no reply to this
email and never received the documents that she requested.
She testified that she requested this information because under
the terms set forth in article XIII, the Respondent’s financial
conditions determines whether the Union is entitled to a wage
reopener, and, in addition, if the Respondent had to install a
sprinkler system at the facility, as Inniss alleged, that would
have an effect on the Respondent’s financial condition.
III. ANALYSIS
The sole allegations herein are that since about March 18
(the date of Everett’s third letter), April 3 (the meeting with
Inniss), and June 10 (the final email from Everett to Inniss), the
Respondent has failed to furnish the Union with the information
that it requested, which information was relevant to the Union
as the representative of certain of Respondent’s employees, in
violation of Section 8(a)(5) and (1) of the Act.
The clear and uncontradicted testimony establishes that Ev-
erett sent her second letter to Respondent to schedule a meeting
and to examine the Respondent’s financial records to determine
whether its financial condition had improved to the extent that
there could be a wage reopener pursuant to article XIII of the
contract. Inniss responded that Respondent’s financial condi-
tion had not improved to allow a wage renegotiation, and, fur-
ther, that the Respondent was required to install a sprinkler
system at its facility that was estimated to cost approximately
$100,000 which funds “. . . are not readily available.” The
letter concludes by saying that if the Respondent is unable to
fund this work, it “. . . could force Law-Den to cease opera-
tions. Consequently, Law-Den is unable to entertain any wage
considerations.”
The law is clear that an employer is obligated under Section
8(a)(5) and (1) of the Act to furnish a union that represents his
employees with information relevant to the union in performing
its collective-bargaining responsibilities. Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979). This includes information
relevant to the union in administering the existing collective-
bargaining agreement as well as information that is relevant to
it in formulating proposals for a new collective-bargaining
agreement. It is well established that an employer must provide
a union with requested information “if there is a probability that
such data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’ exclu-
sive bargaining representative.” Associated General Contrac-
tors of California, 242 NLRB 891, 893 (1979), enfd. 633 F.2d
766 (9th Cir. 1980); Bohemia, Inc., 272 NLRB 1128 (1984). In
KLB Industries, Inc., 357 NLRB 127, 128 (2011), the Board
stated: “. . . an employer’s duty to bargain includes a duty to
provide information that would enable the bargaining repre-
sentative to assess the validity of claims the employer has made
in contract negotiations.” In NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152–153 (1956), the Supreme Court stated that “. . . good
faith bargaining necessarily requires that claims made by either
bargainer should be honest claims,” and if such a claim is “im-
portant enough to present in the give and take of bargaining, it
is important enough to require some sort of proof of its accura-
cy.”
Article XIII of the contract provides that on about January
13, the Respondent will inform the Union if the financial condi-
tion of the company has improved to the extent that it antici-
pates an ability to reopen wage negotiations. In his January 23
letter to Everett, Inniss wrote that Respondent’s financial condi-
tion had not improved to allow for any renewed wage negotia-
tions and, further, that Respondent was required to install a
building sprinkler system at its facility costing approximately
$100,000 and that the funds for it “are not readily available.”
This is precisely what Detroit Edison, Truitt, and KLB Indus-
tries were referring to; when an employer makes an unsubstan-
tiated claim, the union, on proper request, is entitled proof of
that claim in order to properly evaluate what its bargaining
position should be. S-B Mfg. Co., 270 NLRB 485, 492 (1984);
Coupled Products, LLC, 359 NLRB 1443 (2013). As this in-
formation was clearly relevant to the Union in determining
what Respondent’s financial condition was, and whether it
would be able to reopen wage negotiations, and as Inniss re-
fused to provide any of this information to the Union, Respond-
ent violated Section 8(a)(5) and (1) of the Act as alleged in the
complaint.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has
been a health care institution within the meaning of Section
2(14) of the Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:

All full-time and regular part-time housekeeping employees,
laundry employees, dietary employees, and certified nursing
assistants (CNAs) employed at the Employer’s facility in De-
troit, Michigan, but excluding the Director of Nursing, the
Administrator, all Registered Nurses, Unit Managers, clerical
and administrative employees, supervisors and all other em-
ployees.

4. Since on or about March 18 and June 10, 2013, the Re-
spondent has violated Section 8(a)(5) and (1) of the Act by
refusing to provide information as requested by the Union,
which information is relevant to, and necessary for the effective
performance of its role as the collective-bargaining representa-
tive of the employees described above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I recommend that the Respondent be or-
dered to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the Act, in
this case to furnish the Union with the economic information
that Everett requested from the Respondent.
[Recommended Order omitted from publication.]