Maple View Manor

National Labor Relations Board - Board Decisions

Apr 17, 1996

320 N.L.R.B. 1149 (N.L.R.B. 1996)

1149
320 NLRB No. 159
MAPLE VIEW MANOR
1 Although the complaint alleges that the Union was certified on
June 22, rather than June 21, 1995, this was apparently inadvertent
and has been corrected in our decision.
Maple View Manor, Inc. and New England Health
Care Employees Union, District 1199, AFL–
CIO. Case 34–CA–7300
April 17, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed on November 9, 1995, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on January
22, 1996, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain and to
furnish necessary and relevant information following
the Union’s certification in Case 34–RC–1330. (Offi-
cial notice is taken of the ‘‘record’’ in the representa-
tion 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 amended answer admitting in part and denying in
part the allegations in the complaint, and alleging an
affirmative defense.
On March 1, 1996, the General Counsel filed a Mo-
tion for Summary Judgment with the Board. On March
5, 1996, 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. On March 25, 1996,
the Respondent 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 the Respondent denies var-
ious allegations, and asserts as an affirmative defense
that the Union’s certification was improper because
there was a valid collective-bargaining agreement be-
tween the Respondent and another union at the time
the Union filed its representation petition.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that the Respondent’s various denials
in its amended answer do not raise any issue warrant-
ing a hearing. The Respondent’s amended answer de-
nies that the Union is a labor organization, that the
Union was certified on June 22, 1995, and has at all
times since that date been the exclusive bargaining rep-
resentative of the unit, that the Respondent has refused
to bargain with the Union since about October 5, 1995,
and that the information requested by the Union is nec-
essary and relevant.
The Board, however, has previously found the
Union to be a labor organization. See, e.g., Mediplex
of Wethersfield, 320 NLRB No. 35 (Dec. 22, 1995);
and Windsor Castle Health Care Facilities, Inc., 314
NLRB 1270 (1994). Moreover, the Respondent failed
to raise any question as to the Union’s labor-organiza-
tion status in the representation proceeding. Accord-
ingly, the Respondent is precluded from now doing so
in the instant proceeding. See Flatbush Manor Care
Center, 314 NLRB 702 fn. 2 (1994).
With respect to the allegations relating to the
Union’s certification as the exclusive bargaining rep-
resentative, the record from the underlying representa-
tion proceeding and the exhibits attached to the Gen-
eral Counsel’s motion clearly establish that the Union
was so certified on June 21, 1995. A hearing with re-
spect those allegations is therefore clearly unwar-
ranted.1
With respect to the Respondent’s alleged refusal to
bargain, nowhere in its answer or response to the No-
tice to Show Cause does the Respondent contend that
it has offered or agreed to bargain with the Union in
response to the Union’s October 5 and November 14,
1995 letters requesting bargaining and information.
Further, the Respondent’s amended answer admits that
the Respondent has refused to provide the requested
information to the Union, and asserts as an affirmative
defense to the complaint allegations that the Union’s
certification was improper. In these circumstances, we
find that the Respondent is in fact refusing to recog-
nize and bargain with the Union as alleged. See, e.g.,
Indeck Energy Services of Turner Falls, Inc., 318
NLRB No. 34 (Aug. 15, 1995).
Finally, we find that there are also no factual issues
warranting a hearing regarding the Union’s request for
information. The complaint alleges that by letter dated
October 5, 1995, the Union requested the following in-
formation from the Respondent:
1. A list of all employees in the bargaining
unit, alphabetically by Job Classification, includ-
ing address, telephone number, social security
number, date of birth, date of hire, wage rate, and
hours worked per week;
2. Wage scales for each Job Classification;
3. All benefit plans offered (health, life, tuition,
etc.), terms of eligibility and their costs to both
Maple View Manor and the employee;
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. If Maple View Manor provides a pension,
give the total assets of the fund, all actuarial in-
formation and summary plan descriptions;
5. Copy of the Personnel Policy/Policy Manual;
and
6. Any and all other terms and/or conditions
that affect employment.
The complaint alleges that by letter dated November
14, 1995, the Union also requested the following infor-
mation from the Respondent:
1. List of current employees, including their
names, dates of hire, current rates of pay, job
classifications, last known addresses, telephone
numbers and social security numbers;
2. By employee, a breakdown of all benefits
currently received, as well as any pay received as
compensation for full or partial waiver of benefits;
3. By employee, a breakdown of wage history,
including the amounts and dates of wage in-
creases received since date of hire;
4. By job title, a list of minimum probationary
and post-probationary pay rates;
5. Copies of all current job descriptions with
their dates of implementation;
6. Copies of all current company personnel
policies, practices or procedures;
7. Copies of all benefit plans offered by, or in
effect at, the facility, including by [but] not lim-
ited to health insurance, dental insurance, vision
care insurance, retirement, long-term disability,
short-term disability, life insurance, and tuition as-
sistance, and to the extent that it is not apparent
from information requested in item two above, a
breakdown of which employees participate in
each of these plans;
8. For any retirement plan provided, copy of
most recent actuarial reports and total assets of
plan;
9. By participant and in total, the cost to the
employer and to employees of each benefit plan
provided, including but not limited to health in-
surance, long-term disability; short term disability,
life insurance, dental insurance, vision care insur-
ance, retirement, and tuition assistance;
10. By employee, a list of paid time off accrual
rates and current number of hours in the paid time
off bank;
11. Copies of all evaluations of current employ-
ees issued during the last three years along with
merit pay raises that resulted from said evalua-
tions;
12. Copies of all disciplinary notices, warnings
or suspension notices issued to employees during
the last three years, along with a list of any em-
ployees terminated, with reasons for their termi-
nations during the last three years;
13. The name, address and contact person for
the current workers’ compensation carrier;
14. A list of all inservices provided during the
last twelve months, along with lists of the em-
ployees who attended each inservice;
15. A copy of all facility procedures concerning
lifting of patients or heavy objects, and a listing
of any and all mechanical apparatuses used to as-
sist in lifting, including manufacturer, model num-
ber, and date of purchase;
16. A breakdown of current, normal staffing
patterns for the facility, by department, job title,
shift, floor, weekday and holiday, and if this
breakdown has changed during the last twelve
months, a comparable breakdown of the previous
staffing pattern;
17. Information indicating the number of em-
ployees who actually worked (as opposed to nor-
mal scheduling) each day for the last year, broken
down by department, job title, shift and floor;
18. By employee, a breakdown of guaranteed
hours ‘‘on the books’’ and hours actually worked,
including overtime, for each pay period in the last
year;
19. A breakdown of current patients by acuity
level, using whatever classification system is in
effect at the facility (i.e. ‘‘total care,’’ ‘‘assists,’’
‘‘independents’’) for current facility population, as
well as the facility population one year ago and
two years ago;
20. Copy of facility’s dress code policy;
21. Copy of any company policies or proce-
dures with respect to drug or alcohol abuse;
22. Copy of any company policy regarding
light duty, differentiated, if appropriate between
employees disabled at work, employees tempo-
rarily disabled outside of work, and permanently
disabled employees;
23. A list of all employees who have worked
in a light duty capacity during the last years, with
dates, medical restrictions and light duty job de-
scriptions, and a comparable breakdown of any
jobs that have been modified in order to accom-
modate any employee’s permanent disability dur-
ing the last three years;
24. Copies of any charges filed with any state
or federal agency alleging sexual harassment or
discrimination on the basis of physical disability,
mental disability, race, religion, gender, sexual
preference, or age;
25. Copies of logs or files of all complaints
made by employees, residents, or family members
concerning supplies shortages or deficiencies,
equipment problems, or physical plant repair
1151MAPLE VIEW MANOR
2 The Board has held that employee social security numbers and
any charges and complaints filed against a company are not pre-
sumptively relevant and that the union must therefore demonstrate
the relevance of such information. See Heartland of Martinsburg,
318 NLRB No. 10 (July 31, 1995); and Polymers, Inc., 319 NLRB
No. 7 (Sept. 20, 1995), and cases cited therein. Here, the Union did
not specify in its request why it wanted such information or other-
wise demonstrate the relevance of the information. This does not ex-
cuse, however, the Respondent’s failure to supply all of the other in-
formation requested by the Union. Such information clearly is pre-
sumptively relevant and the Respondent’s failure to provide the in-
formation on request violated Section 8(a)(5) of the Act. See id.
needs during the last three years, along with a de-
scription of any action taken by the company to
remedy each complaint;
26. Membership of the facility’s safety commit-
tee, along with dates and minutes of all meetings
held during the last three years; and
27. Copies of any company policies concerning
leaves of absence for employee illness, family ill-
ness, maternity/paternity, educational or other rea-
sons, along with a listing of all employees who
have taken leaves of absence or been denied
leaves of absence during the last three years, the
reasons for said leave requests, and the dates of
any leaves granted.
It is well established that, with the exception of em-
ployee social security numbers and copies of any sex-
ual harrassment or discrimination charges filed against
the Company,2 such information is presumptively rel-
evant for purposes of collective bargaining and must
be furnished on request.
Accordingly, we grant the Motion for Summary
Judgment and will order the Respondent to bargain
and to furnish the requested information with the ex-
ception of employee social security numbers and cop-
ies of any sexual harrassment or discrimination charges
that may have been filed against the Company.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Connecticut
corporation with an office and principle place of busi-
ness in Rocky Hill, Connecticut, has been engaged as
a health care institution in the operation of a nursing
home providing inpatient medical and professional care
services for the elderly and infirm.
During the 12-month period ending December 31,
1995, the Respondent, in conducting its business oper-
ations, derived gross revenues in excess of $100,000
and purchased and received at its facility goods valued
in excess of $5000 directly from points outside the
State of Connecticut. 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 a health
care institution within the meaning 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 June 2, 1995, the Union
was certified on June 21, 1995, as the collective-bar-
gaining representative of the employees in the follow-
ing appropriate unit:
All full time and regular part time service and
maintenance employees employed by the Re-
spondent; but excluding all clerical employees,
and guards, professional employees, and super-
visors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About October 5 and November 14, 1995, the
Union, by letter, requested the Respondent to bargain
and to furnish information, and since about the same
dates the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after October 5 and November
14, 1995, 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 has engaged in unfair
labor practices 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 Sec-
tion 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 un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested, with the exception of employee social secu-
rity numbers and copies of any sexual harrassment or
discrimination charges that may have been filed
against the Company.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
National 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.’’
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, Maple View Manor, Inc., Rocky Hill,
Connecticut, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with New England Health
Care Employees Union, District 1199, AFL–CIO, as
the exclusive bargaining representative of the employ-
ees in the bargaining unit, and refusing to furnish the
Union information that is relevant and necessary to its
role as the exclusive bargaining representative of the
unit employees.
(b) In any like or related manner interfering with,
restraining, 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full time and regular part time service and
maintenance employees employed by the Re-
spondent; but excluding all clerical employees,
and guards, professional employees, and super-
visors as defined in the Act.
(b) Furnish the Union the information that it re-
quested on October 5 and November 14, 1995, with
the exception of employee social security numbers and
copies of any sexual harrassment or discrimination
charges that may have been filed against the Company.
(c) Post at its facility in Rocky Hill, Connecticut,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 34 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with New England
Health Care Employees Union, District 1199, AFL–
CIO, as the exclusive representative of the employees
in the bargaining unit, and WE WILL NOT refuse to fur-
nish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining represent-
ative 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 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 bargaining unit:
All full time and regular part time service and
maintenance employees employed by us; but ex-
cluding all clerical employees, and guards, profes-
sional employees, and supervisors as defined in
the Act.
WE WILL furnish the Union the information that it
requested on October 5 and November 14, 1995 with
the exception of employee social security numbers and
copies of any sexual harrassment and discrimination
charges that may have been filed against the Company.
MAPLE VIEW MANOR, INC.