Care Manor of Farmington, Inc.

330 318 NLRB No. 29 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The tally was 53 votes for the Union, 1 for a different union, and 1 for neither. 2 All dates are in 1993. 3 The information sought was routine information relevant to bar- gaining, such as the employees’ names, addresses, job classifications, and wage rates, and information about the Respondent’s benefit plans and personnel policies. 4 See Sec. 102.69(b) of the Board’s Rules and Regulations. 5 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 777–778 (1990) (citation omitted). Care Manor of Farmington, Inc. and New England Health Care Employees Union, District 1199, AFL–CIO. Case 34–CA–6258 August 15, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING On July 12, 1994, Administrative Law Judge Wal- lace H. Nations issued the attached decision. The Re- spondent filed exceptions and a supporting brief and the General Counsel filed an answering brief to the Respondent’s exceptions. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions and to adopt the recommended Order. The Respondent excepts to the extraordinary remedy awarded by the judge in which he ordered the Re- spondent to pay to the Board and the Union all costs and expenses incurred in the investigation, preparation, presentation, litigation, and conduct of this case. See Heck’s Inc., 215 NLRB 765 (1974); Tiidee Products, 194 NLRB 1234, 1236–1237 (1972), enfd. as modified 502 F.2d 349 (D.C. Cir. 1974), cert. denied 421 U.S. 991 (1975). Contrary to our dissenting colleague, we agree with the judge that the remedy is appropriate in this case. The Respondent flatly refused to bargain with the Union or respond to the Union’s information requests for more than 4 months despite the Union’s uncontested election victory1 and the July 82 certifi- cation as the exclusive bargaining representative of the Respondent’s employees. After the Union’s two July requests to start contract negotiations and its request for information necessary for bargaining went unheeded, Union Vice President Allen personally met with Respondent’s president, Konig, on August 2 and asked him when they could begin negotiations. Konig stated that he would not meet with the Union at that point because he had been notified by his attorney that another union was involved in the matter. Allen, how- ever, correctly informed Konig that the Union had been certified by the Board and that the other union was no longer involved. Nevertheless, as the judge found: Konig said that it did not matter to him and that he was going to let things play out with the Labor Board and that he was not going to give the Union the information requested or meet with the Union. The Respondent, thereafter, persisted in its refusal to bargain until November 12. Further, despite the Union’s reiteration of its information request on Octo- ber 19, the Respondent furnished the Union no infor- mation until November 15 and never furnished all the information requested.3 The Respondent’s refusal to bargain with the Union and to provide information relevant to bargaining had no colorable basis. Unlike routine cases in which em- ployers refuse to bargain with a newly certified union in order to gain court review of the union’s certifi- cation, here the Respondent had filed no objections to the election. Nor did it allege any newly discovered evidence or special circumstances warranting reexam- ination of the Union’s certification. Thus, the Respond- ent had no basis on which to challenge its obligation to bargain with the Union.4 As the Supreme Court has stated: Upon certification by the NLRB as the exclu- sive bargaining agent for a unit of employees, a union enjoys an irrebuttable presumption of ma- jority support for one year. . . . During that time, an employer’s refusal to bargain with the union is per se an unfair labor practice . . . .5 That Allen personally informed Konig of the Union’s certification and Konig responded that it ‘‘did not matter’’ underscore that the Respondent’s contin- ued refusal to bargain constituted nothing more than blatant defiance of its lawful obligation. The baseless- ness of the Respondent’s refusal to bargain or provide information is further reflected in its failure at hearing to present any witnesses or raise any factual issues or issues turning on credibility. Contrary to our dissenting colleague, we find that the Respondent’s ability at hearing to cross-examine the General Counsel’s wit- nesses and raise irrelevant and spurious arguments fails to show that the Respondent’s refusal to bargain or provide information was anything other than utterly without legal basis. That the Respondent ultimately ceased its refusal to bargain with the Union before the hearing began hardly erased its more than 4 months of unlawful conduct. An employer is not free to flout its bargaining obligation provided that it relents and be- gins bargaining before the resulting unfair labor prac- tice complaint comes to hearing. The Respondent’s de- fiance of its lawful obligation to bargain and its refusal to resolve the resulting unfair labor practice charges short of trial caused the Board and the Union to ex- pend resources needlessly and burdened the Board’s 331 CARE MANOR OF FARMINGTON, INC. 1 All dates are 1993 unless otherwise indicated. 2 The tally of ballots showed 53 for the Union, 1 for Local 348- S of the United Food and Commercial Workers, and 1 for no union. 3 See Heck’s Inc., 215 NLRB 765 (1974); and Tiidee Products, Inc., supra. 4 In its defense, a respondent may choose to attack the General Counsel’s case through cross-examination of its witnesses, present witnesses of its own, or both. That the Respondent here chose to es- tablish its defense through the cross-examination of the General Counsel’s witnesses does not render the defense patently frivolous. processes unnecessarily. Accordingly, for the foregoing reasons and those stated by the judge, we find entirely justified the judge’s awarding of an extraordinary rem- edy requiring the Respondent to pay the Board and the Union all costs and expenses incurred in the investiga- tion, preparation, presentation, litigation, and conduct of this case. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Care Manor of Farming- ton, Inc., Farmington, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order. MEMBER STEPHENS, dissenting in part. Although I agree that the Respondent violated Sec- tion 8(a)(5) and (1) by refusing to bargain and furnish information, I do not agree that those violations war- rant the extraordinary remedy awarded by the adminis- trative law judge. As the following review of the facts of the case reveals, the Respondent’s conduct, although unlawful, was not so egregious, or its defenses so pat- ently frivolous, as to require the Respondent to pay the litigation expenses incurred by the Board and the Union in prosecuting the case to a hearing. I, therefore, dissent from that portion of the decision. The Respondent is one of a number of nursing homes owned by Michael Konig, many of which are subject to collective-bargaining agreements with the Charging Party Union. On June 29, 1993,1 the Union won an election in a unit of nonprofessional employees at the Respondent’s facility.2 No objections were filed, and the Board certified the Union as the bargaining representative on July 8. On July 1, prior to the Union’s certification, the Union sent the Respondent a letter requesting bargain- ing and information in preparation for bargaining. On July 19, after the certification, the Union’s vice presi- dent, Maryann Allen, asked the Respondent’s counsel, Stuart Bochner, if he had seen the July 1 letter. Bochner replied that he had not, but that he would be talking to Konig, the Respondent’s president, soon. Allen saw Bochner again about a week later in her of- fice, and he once again promised to get back to her on the matter. Nothing had happened by August 2, when Allen encountered Konig, who told her in effect that because another union was ‘‘involved in the matter’’ he would not at that point meet with the Union or sup- ply information. In response to the Respondent’s refusal, the Union proceeded along two tracks. It filed an unfair labor practice charge with the Board, but it also pursued an- other option available to it because of an agreement which Konig had entered into with the Union at other nursing homes at which the Union was the bargaining representative. Konig had previously agreed to interest arbitration for initial contracts, and his refusal to nego- tiate enabled the Union to submit all terms and condi- tions as matters in dispute to the American Arbitration Association under its Rules for Expedited Arbitration. On October 19, pursuant to the interest arbitration procedure, Leslie Frane, a representative of the Union, sent the Respondent a letter requesting all the informa- tion originally sought, noting that this was the second request, and asking that it be supplied no later than November 1, so that the Union could prepare for the interest arbitration sessions scheduled for November 12 and 15. The Respondent did not provide any of the in- formation until November 15, when some, but not all, was provided. Nonetheless, in the framework of the in- terest arbitration procedure, the parties managed to reach complete agreement on a collective-bargaining agreement at the November 15 session—a ‘‘signed agreement’’ according to Union Negotiator Frane. I certainly agree that the Respondent’s inexcusable foot dragging and failure to promptly supply requested relevant information violated Section 8(a)(5) of the Act. Hence, the Respondent was wrong in thinking that the preexisting interest arbitration arrangement and its achievement of a collective-bargaining agreement with the Union after two sessions would absolve it of all liability under the Act. But I disagree that, under all the circumstances, this is the sort of case for which the Tiidee Products litigation (194 NLRB 1234 (1972) enfd. as modified 502 F.2d 348 (D.C. Cir. 1974), cert. denied 421 U.S. 791 (1975)), costs remedy was de- signed. As the judge correctly noted, the Board has assessed litigation expenses against a respondent when that re- spondent raises ‘‘patently frivolous’’ defenses to a charge that the respondent has refused to bargain.8 I disagree, however, with the judge’s finding, adopted by the majority, that the Respondent’s failure to prof- fer any evidence at the hearing is ‘‘indicative of the Respondent’s willful use of meritless defenses to bur- den the processes of the Board’’ and amounts to an ad- mission that it violated the Act. Contrary to the judge’s observation, the Respondent in fact defended against the complaint through cross-examination of the Gen- eral Counsel’s witnesses.9 The Respondent brought out 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 See, e.g., NLRB v. Cauthorne Trucking, 691 F.2d 1023, 1025– 1026 (D.C. Cir. 1982) (a respondent may limit liability for a unilat- eral change violation by subsequently bargaining in good faith); Steelworkers v. NLRB, 496 F.2d 1342 (5th Cir. 1974) (although the respondent’s claim of misrepresentation by union during election ‘‘borders on the spurious,’’ the defense is not so frivolous as to re- quire assessment of litigation expenses). 6 Compare Harowe Servo Controls, Inc., 250 NLRB 958, 964–965 (1980) (following certification of the union, employer instituted sev- eral unilateral changes, including an across-the-board wage freeze for unit employees while increasing wages paid to other employees, ar- rived late to negotiating sessions, refused to provide information, at- tempted to deal directly with employees, and tendered subsequent bargaining proposals less favorable than previous proposals, unilater- ally increased wages in excess of those offered in its last proposal, and unlawfully withdrew offers to unfair labor practice strikers upon termination of strike) with Houston County Electric Cooperative, 285 NLRB 1213 (1987) (no litigation expenses awarded despite finding that employer bargained in bad faith, made unilateral changes to terms and conditions of employment, and refused to rein- state unfair labor practice strikers). 1 All dates are in 1993 unless otherwise noted. during cross-examination many of the facts set forth above: (1) that the Union sought arbitration in mid-Au- gust, a little more than 1 month following the certifi- cation of the Union; (2) that the Respondent did not object to or otherwise attempt to obstruct or delay the arbitration; and (3) that the Union and the Respondent reached agreement after 2 days of arbitration, without the production of all of the documents requested by the Union. Thus, the Respondent was able to argue (1) that Konig’s statement on August 2 evidenced his misin- formation, not an unequivocal refusal to bargain, and that the Union by invoking interest arbitration, did not take sufficient steps to clarify the misunderstanding; (2) that the Respondent’s willingness and prompt par- ticipation in the arbitration belies its alleged bad faith; (3) that the Respondent’s failure to furnish information was essentially de minimis, because the parties entered into a collective-bargaining agreement without the Union’s having received the documents; and (4) that even if the Board concluded that the Respondent re- fused to bargain or provide information, that violation was of such short duration as to require no remedy.5 Although we have found these defenses to be without merit, they are not patently frivolous. In my view, the Respondent’s conduct in this case does not approach the level of flagrant violation or frivolous defenses for which we have awarded litiga- tion expenses in the past.6 Therefore, I would not award litigation expenses to the Board and the Union as a remedy in this case. Thomas W. Doerr, Esq., for the General Counsel. Stuart Bochner, Esq., of South Orange, New Jersey, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. Based upon a charge filed by New England Health Care Employees Union, District 1199, AFL–CIO (the Union) on August 4, 1993,1 the Regional Director for Region 34 issued a com- plaint and notice of hearing (complaint) on September 30, 1993. The complaint alleges that Care Manor of Farmington, Inc. (Care Manor or Respondent) has refused to bargain with the Union, and further, has failed and refused to provide to the Union information that is necessary and relevant to its role in representing a unit of Respondent’s employees, and has thus violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Respondent’s answer to the complaint, inter alia, admits the jurisdictional allegations of the complaint as well as the labor organization status of the Union and the supervisory status of its president, Michael Konig. Hearing was held in these matters in Hartford, Connecti- cut, on February 7, 1994. Based upon the entire record, in- cluding my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION In its answer to the complaint, Respondent admitted the jurisdictional allegations. At all material times, Respondent, a Connecticut corporation with an office and place of busi- ness in Farmington, Connecticut, has been engaged in the op- eration of a nursing home. During the 12-month period end- ing August 31, 1993, Respondent, in conducting its business operations described above, derived gross revenues in excess of $100,000. During the same period, Respondent purchased and received at its facility goods valued in excess of $5000 directly from points outside the State of Connecticut. I, therefore, find that at all material times, Respondent has been an employer 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. II. THE INVOLVED LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts and the Issues for Determination Pursuant to a Board-conducted election, the Union was certified as the exclusive collective-bargaining representative of a unit of Respondent’s employees on July 8, and since July 8, based on Section 9(a) of the Act, has been the exclu- sive collective-bargaining representative of the unit. The fol- lowing employees of Respondent (the unit), constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 333 CARE MANOR OF FARMINGTON, INC. All full-time and regular part-time employees employed by the Employer at its Farmington, Connecticut facility, including licensed practical nurses, certified nurses aides, dietary employees, housekeeping employees, laundry employees, maintenance employees, recreation department employees, the secretary, the admissions co- ordinator, and clerical employees; but excluding the ad- ministrator, the director of nursing services, the assist- ant director of nursing services and registered nurses, and other supervisors and guards as defined in the Act. The complaint alleges that: 1. About July 1, by letter, July 19, by telephone, July 28, and August 2, in person, the Union requested that Respond- ent bargain collectively with the Union as the exclusive col- lective-bargaining representative of the unit. 2. Since about August 2, Respondent has failed and re- fused to bargain with the Union as the exclusive collective- bargaining representative of the unit. 3. About July 1, by letter, the Union requested that Re- spondent furnish the Union the following information: . . . [a] list of all employees, alphabetically by job classification, including their Social Security numbers, dates of hire, addresses, telephone numbers, birthdates, wage rates and hours worked per week. . . . [a]ll infor- mation regarding benefit plans offered (health, life tui- tion, etc.) and their costs both to you and to the em- ployees. If you provide a pension, please give the total assets of the fund, all by-law and actuarial information and summary plan descriptions. In addition, we request a copy of your personnel policies and any other terms and/or conditions that affect employment. 4. The information requested by the Union is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. 5. Since about August 2, Respondent has failed and re- fused to furnish the Union with the information requested by it as described above. Respondent, through counsel, admitted at the hearing that Respondent did receive the Union’s request to bargain and its information request. Union Vice President Maryann Allen testified that the Union sent Respondent a letter dated July 1 requesting bargaining, the information set out above, and asked that Respondent contact the Union’s president, Jerome Brown, to set up dates for negotiations for a collective-bar- gaining agreement. On July 19, Allen had a phone conversation with Re- spondent’s attorney in which she asked the attorney to set up dates for negotiations. She asked the attorney if he had seen Brown’s letter of July 1, and the attorney said he had not. The attorney indicated he would be speaking with Respond- ent’s president, Konig, and the conversation ended. In the last week of August, Respondent’s attorney was in the Union’s office on another matter pertaining to some other nursing homes that Konig owns whose employees are rep- resented by the Union. Allen asked the attorney if he had spoken to Konig and was he prepared to negotiate and pro- vide the requested information. The attorney said he would speak with Konig at the end of the week and would get back to Allen. The attorney indicated that he had seen Brown’s letter of July 1 but had not yet spoken to Konig about the letter. The attorney did not get back to Allen about the mat- ter. On August 2, Allen met Konig at Bradley International Airport in Windsor Locks, Connecticut. They talked about Brown’s letter and Allen asked when they could begin nego- tiations. Konig replied that he had had a discussion with his attorney and that he was informed that another union was in- volved in the matter and therefore he did not feel that at that point he would meet with the Union. Allen told him the Union had been certified by the Board and that the other union was out of it. Konig said that it did not matter to him and that he was going to let things play out with the Labor Board and that he was not going to give the Union the infor- mation requested or meet with the Union. In contracts that the Union has with other of Konig’s nurs- ing homes is a provision that provides that when a newly or- ganized facility is certified by the Board, the employer will meet with the Union and negotiate. This provision is subject to the arbitration provisions of the contracts. Pursuant to this provision, Allen sent a letter to the contractual arbitrator, the American Arbitration Association which reads as follows: Pursuant to the above captioned parties’ written agreement, I am writing to submit a dispute over an ini- tial collective bargaining agreement at Care Manor of Farmington for interest arbitration under AAA’s Rules for Expedited Arbitration. Some background to this submission is necessary to avoid possible confusion. New England Health Care Employees Union, District 1199 is a party to numerous collective bargaining agreements with Connecticut nurs- ing homes owned by Michael Konig. As part of a re- cent comprehensive settlement of successor contracts, the parties agreed to submit all unresolved terms of ini- tial contracts for any newly organized bargaining units to AAA under its Rules for Expedited Arbitration. Please find enclosed the parties’ agreement in this matter, and note especially numbered items 2 through 5, which specify parameters for the arbitrator on the economic and language terms for any initial contract. District 1199 was recently certified by the NLRB as the bargaining representative for a unit of professionals, clerical workers, and service and maintenance employ- ees at Care Manor of Farmington. The employer has re- fused to negotiate with us pursuant to the terms of the enclosed agreement, so therefore, we are now submit- ting all matters in dispute for interest arbitration as in- dicated above. Leslie Frane, a nursing home organizer for the Union, tes- tified that she was assigned responsibility for Care Manor of Farmington in October. On October 19, she sent Respondent a letter requesting the same information requested in Brown’s July 1 letter and further noting that this was the sec- ond request for the information. Frane requested the informa- tion be supplied as soon as possible, but no later than No- vember 1, indicating the information was needed to prepare for interest arbitration set for November 12 and 15. Frane testified that she never received a response to this letter from Respondent. The parties stipulated at the hearing that as of November 5, the Respondent had not furnished the requested information to the Union. 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Interest arbitration between the parties began on November 12. It was a 2-day process, with the Union and Respondent presenting proposals for an initial contract. By the end of the day, it appeared that the positions of the parties were close. The parties met again on November 15 and an agreement was reached on a collective-bargaining agreement. On No- vember 12, the Union had reiterated its request for informa- tion. On November 15, the Respondent provided some, but not all, of the requested information. Frane testified: The most noteworthy omission is that nothing pertain- ing to the nurses was provided. All the licensed prac- tical nurses are in the bargaining unit and all that was given to us was a list of employees, job classifications, dates of hire and I don’t recall whether wage rates were included. I believe they were. But none of the informa- tion concerning benefit plans. Frane testified that addresses, telephone numbers, birth dates, and hours worked per week were not provided at that time, but were subsequently provided. Information relating to the licensed practical nurses has still not been provided. B. Discussion and Conclusions Section 8(d) of the Act sets forth the fundamental require- ment that the parties in a collective-bargaining relationship ‘‘meet . . . with respect to . . . the negotiation of an agree- ment.’’ Here, the record evidence clearly establishes that the Union’s request to meet and bargain was refused by Re- spondent. Thus, Respondent offered no testimony or other evidence to refute General Counsel’s evidence that by letter dated July 1, and by oral communication of August 2, the Union requested a meeting to negotiate an initial collective- bargaining agreement. In addition, Respondent did not refute Allen’s testimony that on August 2, Respondent, through Konig, refused to meet and bargain. Such a refusal is a breach of an employer’s duty to bargain in good faith and a violation of Section 8(a)(5) of the Act. Pony Express Cou- rier Corp., 311 NLRB 1157 (1993). In addition to the duty to meet and bargain, an employer is under a duty to supply requested information relevant to collective bargaining. NLRB v. Acme Industrial Co., 385 U.S. 432, 435–436 (1967); Proctor & Gamble Mfg. Co., 237 NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979). Here, the Union requested the names, addresses, telephone numbers, birthdates, wage rates, hours worked per week, job classifications, social security numbers, and dates of hire of employees. In addition, information regarding employee ben- efit plans, personnel policies, and other terms and conditions of employment was requested by the Union. Although the evidence establishes that the Union requested the information in order to prepare for negotiations, such information is pre- sumptively relevant and no showing of need is necessary. Hospitality Care Center, 307 NLRB 1131, 1134 (1992); Safelite Glass, 283 NLRB 929, 948 (1987). The fact that the Union later elected to enter into a collective-bargaining agreement without having received all of the requested infor- mation does not render the requested information irrelevant. NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951). As with Respondent’s refusal to meet and bargain, the evi- dence clearly demonstrates that on August 2, Respondent, through Konig, refused to supply the requested information. Moreover, the refusal continued until November 15, when some, but not all of the information was provided. The par- tial provision of some of the information belies any conten- tion by Respondent that it did not have an obligation to sup- ply the information. Respondent has offered no reason why it does not have an obligation to supply the remainder of the information requested by the Union. By the date of the hear- ing, some of the information still had not been provided. By its delay in providing some of the information and its refusal to provide the rest of the information, Respondent refused to bargain in good faith in violation of Section 8(a)(5) of the Act. Postal Service, 308 NLRB 547 (1992). CONCLUSIONS OF LAW 1. 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. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by the Employer at its Farmington, Connecticut facility, including licensed practical nurses, certified nurses aides, dietary employees, housekeeping employees, laundry employees, maintenance employees, recreation department employees, the secretary, the admissions co- ordinator, and clerical employees; but excluding the ad- ministrator, the director of nursing services, the assist- ant director of nursing services and registered nurses, and other supervisors and guards as defined in the Act. 4. Since July 8, 1993, based on Section 9(a) of the Act, the Union has been the certified exclusive collective-bargain- ing representative of the Respondent’s employees in the unit described in paragraph 3 above. 5. Respondent has engaged in conduct in violation of Sec- tion 8(a)(5) and (1) of the Act by: (a) On August 2, 1993, refusing the Union’s request to bargain collectively with the Union as the exclusive collec- tive-bargaining representative of the unit. (b) Since August 2, 1993, failing and refusing to supply the Union with information requested on July 1, 1993, which information is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargain- ing representative of the unit. 6. The unfair labor practices that Respondent has been en- gaging in are unfair labor practices affecting commerce with- in the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has been engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it is recommended that it be ordered to cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act. It is recommended that Respondent be ordered to, upon re- quest, bargain collectively in good faith with the Union as 335 CARE MANOR OF FARMINGTON, INC. the exclusive collective-bargaining representative of the unit. It is further recommended that Respondent be ordered to sup- ply the Union with all of the information requested by the Union on July 1, 1993, that it has not heretofore supplied. In addition to the remedies recommended above, the Gen- eral Counsel requests that Respondent be ordered to reim- burse the Board and the Union for all costs and expenses in- curred in the investigation, preparation, presentation, litiga- tion, and conduct of this case in light of Respondent’s frivo- lous defense of the allegations of the involved complaint. As can be seen from my findings of fact, Respondent put on no defense to the complaint allegations; yet it forced this pro- ceeding to trial without any reason being given for its refusal to bargain or failure and refusal to furnish information to the Union in a timely fashion or at all. In its answer to the com- plaint, it even denied the appropriateness of the unit, though that matter was decided upon certification. It appears to me that the Respondent has vindictively set out to ignore the Union’s certification and flaunt the Board’s processes by its actions as described in the complaint and its actions before the Board with respect to this complaint. The Board in Tiidee Products, 194 NLRB 1234, 1236– 1237 (1977), held that, in order to effectuate the policies of the Act and serve the public interest, it had the authority to award costs and expenses in situations when a respondent en- gages in frivolous litigation. Following Tiidee, the Board, in Heck’s Inc., 215 NLRB 765 (1974), distinguished situations where the issues raised by a respondent were ‘‘debatable’’ from those where the issues raised were ‘‘patently frivo- lous.’’ More specifically, the Board in Heck’s defined ‘‘de- batable issues’’ as those ‘‘which embraced questions of credibility, as distinguished from those in Tiidee which were characterized as ‘patently frivolous’ and thus clearly meritless on their face.’’ Id. at 766. Thus, even though a de- fense is ultimately found unmeritorious, if resolution of the issue involves credibility, or some other debatable question, then an award of litigation expenses would not be appro- priate. See, e.g., Schuck Component Systems, 230 NLRB 838 (1977). In subsequent cases, the Board found that an award of liti- gation costs is appropriate when the offending party inten- tionally uses defenses that are meritless on their face in a clear attempt to burden the processes of the Board. Fetzer Broadcasting Co., 227 NLRB 1377 (1977), and in cases when there are no significant factual controversies, and when a respondent displays a willful and persistent defiance of the law. J. P. Stevens & Co., 239 NLRB 738, 770–772 (1978). As pointed out by General Counsel the facts in the instant case are very similar to the facts in Tiidee. In Tiidee, the em- ployer and union entered into an agreement for consent elec- tion in connection with the union’s effort to organize the em- ployer’s production and maintenance employees. A represen- tation election was conducted shortly thereafter and the union prevailed. The employer subsequently filed timely objections, which were investigated by the Regional Office. Based on the investigation, the employer’s objections were overruled and the union was certified as the exclusive bargaining rep- resentative of the production and maintenance unit. Follow- ing the certification, the Union contacted the employer and requested bargaining. This request was denied, as the em- ployer’s labor consultant advised the union that the employer would not comply with the certification because ‘‘the Re- gional Director acted arbitrarily and capriciously by denying the employer his right to due process . . . by making an ad- ministrative determination concerning the objections to the election rather than affording it the opportunity for a hear- ing.’’ The administrative law judge in Tiidee concluded, inter alia, that the employer violated Section 8(a)(1) and (5) of the Act by engaging in conduct arising out of its refusal to ac- knowledge and/or abide by the certification of the union. The judge’s recommended remedy was based in part on the ‘‘na- ture and extent’’ of the unfair labor practices found, and ‘‘because these violations manifest an attitude of hostility di- rected toward the very purposes of the Act.’’ Id. at 715. On remand from the court of appeals, the Board addressed the issue of the appropriateness of an award of litigation costs and expenses. See 194 NLRB 1234 (1972), concluding that, given the circumstances of the case, such an award was warranted. In light of the above authority, and noting the specific facts in Tiidee, it is clear from the record that the extraor- dinary remedy requested in the instant case is appropriate. Clearly, no questions of credibility need to be resolved. The record established that Respondent (as was the case with the employer in Tiidee) displayed a willful and persistent defi- ance of the Regional Director’s certification of the Union as the exclusive representative of the employees in the unit. In this regard, Respondent’s actions in initially refusing to meet and bargain and in refusing to furnish relevant information demonstrate its complete and utter disregard for the Region’s certification of the Union as the exclusive representative of the unit employees. Respondent’s further actions of forcing the Union to interest arbitration without having furnished the requested information, and finally, at the 11th hour, agreeing to a contact, underscore its intent to delay as long as possible and to cause the Union to expend resources needlessly. In addition to the evidence establishing Respondent’s ‘‘hostility toward the purposes of the Act,’’ the record dem- onstrated that Respondent frivolously forced the General Counsel and the Union to a hearing in the instant matter without any debatable defenses to the allegations in the com- plaint. Fully indicative of the Respondent’s willful use of meritless defenses to burden the processes of the Board (see Fetzer, supra) is its failure to proffer any evidence at the hearing. By failing to bring forth any evidence, Respondent was in effect admitting that it had violated the Act, but it was forcing the Board and the Union to litigate the matter nevertheless. Although I do not question the Respondent’s absolute right to due process by availing itself of the Board’s decision-making processes, under the circumstances of this case, and in light of the Board’s rationale in Tiidee and its progeny, the Respondent does not have the right to avail itself of those processes ‘‘free of charge.’’ Because the Re- spondent’s conduct has unnecessarily burdened the Board’s processes by its insistence on litigating the instant case, an award of litigation costs is not only just and proper, but it is the only way to fully remedy the effects of Respondent’s violations of the Act and its subsequent behavior. Accordingly, it is recommended that Respondent be or- dered to pay to the Board and the Union all costs and ex- penses incurred in the investigation, preparation, presentation, litigation, and conduct of this case. 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 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.’’ On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2 ORDER The Respondent, Care Manor of Farmington, Inc., Farm- ington, Connecticut, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing the Union’s request to bargain collectively with it as the exclusive collective-bargaining representative of the unit. (b) Failing and refusing to supply the Union with informa- tion requested on July 1, 1993, which information is nec- essary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. (c) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) On request, bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of its employees in the unit. (b) Furnish to the Union all of the information requested in its letter of July 1, 1993. (c) For the reasons set forth in the remedy section of this decision, pay to the Board and the Union all costs and ex- penses incurred in the investigation, preparation, presentation, litigation, and conduct of this case. (d) Post at its facility in Farmington, Connecticut, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Re- gion 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt 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 insure that the notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. In recognition of these rights we notify our employees: WE WILL NOT refuse to bargain in good faith with the New England Health Care Employees Union, District 1199, AFL–CIO as the exclusive collective-bargaining representa- tive of our employees in the following unit: All full-time and regular part-time employees employed by the employer at its Farmington, Connecticut facility, including licensed practical nurses, certified nurses aides, dietary employees, housekeeping employees, laundry employees, maintenance employees, recreation department employees, the secretary, the admissions co- ordinator, and clerical employees; but excluding the ad- ministrator, the director of nursing services, the assist- ant director of nursing services and registered nurses, and other supervisors and guards as defined in the Act. WE WILL NOT refuse to provide the Union with informa- tion which is necessary for and relevant to its performance of its duties as the exclusive collective-bargaining representa- tive of our employees in the above-described unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL pay to the Board and the Union all costs and expenses incurred in the investigation, preparation, presen- tation, litigation, and conduct of this proceeding in light of our frivolous defense of the allegations of the Board’s com- plaint. CARE MANOR OF FARMINGTON, INC.