North Kingstown Nursing Care Center, Inc.

NORTH KINGSTOWN NURSING CARE CENTER, INC. 409 North Kingstown Nursing Care Center, Inc. and United Health Care Employees, a Division of the Rhode Island Worker's Union, Local 76, Service Employees International Union, AFL- CIO. Case -CA-16018 March 13, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on May 2, 1979, and amend- ed on June 8, 1979, by United Health Care Em- ployees, a Division of the Rhode Island Worker's Union, Local 76, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on North Kingstown Nursing Care Center, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint on June 14, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an ad- ministrative law judge were duly served on the parties to this proceeding. Respondent failed to file an answer to the complaint. On January 2, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subse- quently, on January 7, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent did not file a response to the Board's Notice to Show Cause and the averments of the Motion for Summary Judgment stand uncon- troverted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Section 102.20 of the Board's Rules and Regula- tions, Series 8, as amended, provides as follows: The respondent shall, within 10 days from the service of the complaint, file an answer there- to. The respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without 248 NLRB No. 17 knowlege, in which case the respondent shall so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegations in the complaint not specifically denied or explained in an answer filed, unless the respondent shall state in the answer that he is without knowledge, shall be deemed to be admitted to be true and shall be so found by the Board, unless good cause to the contrary is shown. The complaint and notice of hearing served on Respondent specifically stated that unless an answer was filed to the complaint within 10 days from the service thereof "all of the allegations in the Complaint shall be deemed to be admitted to be true and may be so found by the Board." Further, according to the Motion for Summary Judgment, counsel for the General Counsel informed Respon- dent by letter on November 30, 1979, that it had an additional 10 days from the date of the service of the letter to file an answer, and if it did not do so within the 10-day period, summary judgment would be sought. As noted above, Respondent failed to answer the complaint or respond to the Notice To Show Cause. Accordingly, under the rule set forth above, no good cause having been shown for the failure to file an answer, the allegations of the complaint are deemed admitted and are found to be true, and we grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Rhode Island corporation, with its principal office and place of business at 990 Ten Rod Road, North Kingstown, Rhode Island (herein called the North Kingstown facility), is now and continuously has been engaged at said facility in the operation of a nursing home. Annually, Re- spondent receives at its North Kingstown facility medical supplies, materials, and equipment valued in excess of $50,000 directly from points located outside the State of Rhode Island. Respondent's annual gross volume of business exceeds $100,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED United Health Care Employees, a Division of the Rhode Island Worker's Union, Local 76, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regularly scheduled part-time employees including registered nurses, licensed practical nurses, nurses aides, orderlies, house- keeping employees, dietary employees, cooks, maintenance employees, laundry employees and clerical employees employed by the Re- spondent at its North Kingstown facility but excluding managerial employees, director of nursing, guards and supervisors as defined in Section 2(11) of the Act. The Union has been the collective-bargaining representative of the employees in said unit since October 11, 1977, when it was certified by the Board's Regional Director for Region I following a secret-ballot election, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Refusals To Bargain On or about February 10, March 20, April 16, and May 11, 1979, the Union requested that Re- spondent meet to negotiate and discuss rates of pay, hours of employment, and other conditions of employment. Since on or about February 10, 1979, and at all times thereafter, Respondent has failed and refused and continues to fail and refuse to meet with the Union to negotiate and discuss rates of pay, hours of employment, and other conditions of employment. Since on or about February 10, 1979, Respon- dent has conditioned meeting with the Union on the presence of employees at negotiation sessions. On or about May 11, 1979, the Union requested Respondent to furnish to the Union information re- lating to Respondent's reimbursement rate and census figures, which is relevant and necessary to the Union's role as the exclusive bargaining repre- sentative of the employees in the above-described appropriate unit. Since that date, and at all times thereafter, Respondent has failed and refused and continues to fail and refuse to furnish the Union with this information. Accordingly, we find that, by the conduct de- scribed in each of the preceding paragraphs, Re- spondent has engaged in and is engaging in unfair labor practices with the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action designed to effectu- ate the policies of the Act. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. North Kingstown Nursing Care Center, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Health Care Employees, a Division of the Rhode Island Worker's Union, Local 76, Ser- vice Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regularly scheduled part-time employees including registered nurses, licensed practical nurses, nurses aides, orderlies, housekeep- ing employees, dietary employees, cooks, mainte- nance employees, laundry employees and clerical employees employed by Respondent at its North Kingstown facility but excluding managerial em- ployees, director of nursing, guards and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since October 11, 1977, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. NORTH KINGSTOWN NURSING CARE CENTER, INC. 411 5. By refusing, on or about February 10, March 20, April 16, and May 11, 1979, and at all times thereafter, to meet with the Union to negotiate and discuss rates of pay, hours of employment, and other conditions of employment; by conditioning, since on or about February 10, 1979, meeting with the Union on the presence of employees at negotia- tion sessions; and by refusing, since on or about May 11, 1979, to furnish the Union with informa- tion relating to Respondent's reimbursement rate and census figures, which is relevant and necessary to the Union's role as the exclusive bargaining rep- resentative of the employees in the unit found ap- propriate herein, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, North Kingstown Nursing Care Center, Inc., North Kingstown, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to meet to negotiate and discuss rates of pay, hours of employement, and other con- ditions of employment with United Health Care Employees, a Division of the Rhode Island Work- er's Union, Local 76, Service Employees Interna- tional Union, AFL-CIO, as the certified and exclu- sive collective-bargaining representative of its em- ployees in the following appropriate unit: All full-time and regularly scheduled part-time employees including registered nurses, licensed practical nurses, nurses aides, orderlies, house- keeping employees, dietary employees, cooks, maintenance employees, laundry employees and clerical employees employed by the Re- spondent at its North Kingstown facility but excluding managerial employees, director of nursing, guards and supervisors as defined in Section 2(11) of the Act. (b) Conditioning meeting with the Union on the presence of employees at the negotiation sessions. (c) Refusing to furnish the Union with informa- tion relating to its reimbursement rate and census figures, which is relevant and necessary to the Union's role as the exclusive bargaining representa- tive of the employees in the appropriate unit. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the aforesaid ap- propriate unit with respect to rates of pay, hours of employment, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, furnish the Union with infor- mation relating to its reimbursement rate and census figures, which is relevant and necessary to the Union's role as the exclusive bargaining repre- sentative of the employees in the unit found appro- priate herein. (c) Post at its North Kingstown, Rhode Island, facility copies of the attached notice marked "Ap- pendix."' Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. i In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to meet to negotiate and discuss rates of pay, hours of employment, and other conditions of employment with United Health Care Employees, a Division of the Rhode Island Worker's Union, Local 76, Service Employees International Union, AFL- CIO, as the certified and exclusive bargaining representative of our employees in the follow- ing appropriate unit: 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regularly scheduled part- time employees including registered nurses, licensed practical nurses, nurses aides, order- lies, housekeeping employees, dietary em- ployees, cooks, maintenance employees, laundry employees and clerical employees employed by us at our North Kingstown fa- cility but excluding managerial employees, director of nursing, guards and supervisors as defined in Section 2(11) of the Act. WE WILL NOT condition meeting with the Union on the presence of employees at the ne- gotiation sessions. WE WILL NOT refuse to furnish the Union with information relating to our reimburse- ment rate and census figures, which is relevant and necessary to the Union's role as the exclu- sive bargaining representative of the employ- ees in the above unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the above appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. WE WILL, upon request, furnish the Union with information relating to our reimburse- ment rate and census figures, which is relevant and necessary to the Union's role as the exclu- sive bargaining representative of the employ- ees in the above unit. NORTH KINGSTOWN NURSING CARE CENTER, INC.