Parkview Manor

477 321 NLRB No. 68 PARKVIEW MANOR 1 307 NLRB 877 (1992), petition for review denied sub nom. Elec- trical Workers UE v. NLRB, 986 F.2d 70 (4th Cir. 1993). 2 See Williams Enterprises, 312 NLRB 937, 938–939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), and cases cited there. The Respondent’s reliance on Newell Porcelain, supra, is mis- placed. In Newell Porcelain, a company obligated to bargain with a newly affiliated union made a good-faith, albeit unsuccessful, effort during negotiations to ascertain that it was in fact negotiating with that union, and was held justified in suspending negotiations pending clarification of the identity of the party with which it was negotiat- ing. By contrast, the Respondent here made no attempt to clarify the ambiguity and ascertain the relationship between Council 62 and Local 1199. 3 Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Cormier Hosiery Mill, 243 NLRB 19 (1979). Sherwood Corporation d/b/a Parkview Manor and American Federation of State, County & Mu- nicipal Employees, Local 1199, the National Union of Hospital and Health Care Employees. Case 25–CA–23169 June 14, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Upon a charge filed on April 25, 1994, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on May 19, 1995, 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 provide information following the Union’s certification in Case 25–RC–9208. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, sub- mitting affirmative defenses, and requesting that the complaint be dismissed in its entirety. On January 22, 1996, the General Counsel filed a Motion for Summary Judgment. On January 24, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed a re- sponse and a Cross-Motion for Summary Judgment. The General Counsel filed an opposition to the Re- spondent’s cross-motion. The Respondent filed a reply to the General Counsel’s opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent raises three defenses to its refusal to bargain and provide information. First, the Respond- ent denies that the Union requested the Respondent to recognize and bargain with it. In its Cross-Motion for Summary Judgment, the Respondent argues that no valid demand for bargaining and for information was ever made by the Union. The Respondent contends that a March 24, 1994 letter requesting bargaining and information was on the letterhead of American Federa- tion of State, County, and Municipal Employees, AFL– CIO, Indiana AFSCME Council 62 and made no men- tion of Local 1199, the certified bargaining representa- tive of the Respondent’s employees. The letter con- tained neither an explanation of the relationship be- tween the two unions nor any reason why Council 62 was entitled to recognition. Citing Newell Porcelain Co.,1 the Respondent argues that where a union is cer- tified to represent an employer’s employees, the em- ployer is required to recognize and bargain only with that union. The Respondent contends that it had no ob- ligation to recognize, bargain with, or supply informa- tion to Council 62, and that Council 62 is the only en- tity that made such requests. We reject the Respondent’s argument that Local 1199 made no bargaining demand. We find that even if the March 24, 1994 letter was not, in itself, a suffi- cient demand by Local 1199, the refusal-to-bargain charge filed by Local 1199 on April 25, 1994, refer- ring to that letter clarified any ambiguity as to which entity was requesting bargaining. Thus, the charge, filed little more than 2 months from the date of the certification, clearly alleged that Local 1199 ‘‘by letter dated March 24, 1994, requested information from the . . . Employer . . . and requested to bargain with the Employer.’’ Therefore, we find that the charge, to- gether with the letter, constituted a valid demand for bargaining and for information.2 Accordingly, we re- ject the Respondent’s defense. Second, the Respondent asserts as an affirmative de- fense the argument that the Board improperly over- ruled the Respondent’s objections to the election and improperly included in the bargaining unit individuals whom the Respondent and the Union had stipulated to be supervisors within the meaning of Section 2(11) of the Act and whose duties show they are supervisors under the standard enunciated in the Supreme Court’s decision in NLRB v. Health Care & Retirement Corp. of America, 114 S.Ct. 1778 (1994). It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 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. However, we find that 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Supplemental Decision and Certification of Representative, Case 25–RC–9208 (Feb. 24, 1994). As noted by the hearing officer, in directing a hearing on the su- pervisory status of certain charge nurses notwithstanding the parties’ stipulation that they were supervisors, the Board relied on Rosehill Cemetery Assn., 262 NLRB 1289 (1982), which held that stipula- tions raising either statutory questions or issues affecting Board pol- icy will not be binding on the Board. We find that the Respondent has raised nothing requiring reexamination of that aspect of the Board’s decision in the representation proceeding. 5 The General Counsel in his opposition has requested that, if the Board deems it necessary to reconsider its Supplemental Decision and Certification in Case 25–RC–9208, the parties be allowed to submit briefs to the Board arguing the application of NLRB v. Health Care & Retirement Corp., supra, and its progeny to the record evi- dence. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 6 See Providence Hospital, 320 NLRB 717, 727 (1996). 7 Providence Hospital, supra, at 732. 8 Ten Broeck Commons, 320 NLRB 806 (1996); Providence Hos- pital, supra. the decision of the Supreme Court in NLRB v. Health Care & Retirement Corp., supra, which issued subse- quent to the underlying representation proceeding in this case, constitutes a special circumstance requiring the Board to reexamine its decision in the representa- tion proceeding.4 In Health Care & Retirement Corp., the Supreme Court rejected the Board’s patient care analysis for determining the supervisory status of charge nurses and found that the Board’s construction of the phrase ‘‘in the interest of the employer’’ was ‘‘inconsistent with both the statutory language and this Court’s precedents.’’ (Id. at 1783.) The hearing offi- cer’s report and recommendation, which the Board es- sentially adopted in the representation phase of this proceeding, used the now-discredited ‘‘patient care’’ analysis in its discussion of the supervisory indicia of assignment and direction. Accordingly, we do not rely on that analysis and have independently reexamined the record in the representation proceeding in light of the Supreme Court’s subsequent decision in Health Care & Retirement Corp., supra.5 Our review of the record persuades us that the charge nurse’s assignment of work and direction of employees in this case is routine and does not require independent judgment. For example, charge nurses make out assignment sheets at the start of each shift and determine which employees are assigned to which residents. In making these assignments, the charge nurse attempts to divide the number of residents evenly among the employees and takes into consideration the skills of the employees. The Board has found, how- ever, that work assignments made to equalize work among employees and assignments based on assess- ment of employees’ skills, when the differences in skills are well known, are routine functions and do not require the exercise of independent judgment.6 Although the Employer’s handbook provides that charge nurses have the authority to schedule rest or meal breaks, the record indicates that this authority is not generally exercised. Breaktimes are not prescheduled and there is no evidence that employees must obtain permission from the charge nurse before taking a break. The record shows that employees are not even uniformly required to notify the charge nurse that they are going on break. Under such cir- cumstances, we find that the charge nurses’ authority to schedule breaks is limited and that even if the charge nurses have the authority to deny an employ- ee’s request for breaktime, this is a routine clerical function not requiring the exercise of independent judgment.7 Charge nurses are responsible for determining whether an employee’s absence will put the facility below the state-required number of nursing hours per patient. If so, the charge nurse is responsible for call- ing in off-duty employees to fill the vacancy. In decid- ing which employees to call, the charge nurses con- sider the employees’ job titles and use their own expe- rience concerning which employees are generally will- ing to come in. However, the record indicates that charge nurses do not have the authority to compel an employee to come to work or to stay overtime to cover an absence. As the Board found in Providence Hos- pital, supra, at 732, this is essentially a clerical func- tion. ‘‘Assessing whether there is a high or low patient census warranting calling in extra help or letting staff off early is not significantly more complicated than counting the number of patients.’’ Thus, we find that without the authority to compel an employee to work, the charge nurses’ responsibility to call in employees when necessary under state law requires only routine judgment. For these reasons we agree with the hearing officer that the charge nurses’ limited assignment and direction of other employees does not require the use of independent judgment within the meaning of Sec- tion 2(11) of the Act.8 With regard to the remaining supervisory indicia listed in Section 2(11), the hearing officer found, and we agree, that the charge nurses are not involved in hiring, transferring, laying off, recalling, or adjusting grievances. In section IV,B, of his report, the hearing officer found, and we agree, that the charge nurses do not have the authority to reward or promote or to ef- fectively recommend those actions. We also adopt the hearing officer’s findings in section IV,C, of his report that the charge nurses do not have the authority to sus- pend, discharge, discipline, or to effectively rec- ommend that action. For these reasons, we conclude that the record sup- ports the hearing officer’s determination that the charge nurses are not supervisors. Accordingly, we re- affirm the Certification of Representative issued in Case 25–RC–9208, and find this defense to the 8(a)(5) allegations to be without merit. 479 PARKVIEW MANOR 9 Ray Brooks v. NLRB, 348 U.S. 96, 101–103 (1954). 10 Van Dorn Plastic Machinery Co., 300 NLRB 278 (1990), enfd. 939 F.2d 402 (6th Cir. 1991). 11 Den-Tal-Ez, Inc., 303 NLRB 968, 970 (1991), enfd. 986 F.2d 1409 (3d Cir. 1993). 12 The Board has held that employee social security numbers are not presumptively relevant and that the union must therefore dem- onstrate the relevance of such information. See Heartland of Mar- tinsburg, 318 NLRB No. 10 (July 31, 1995) (not reported in Board volumes). Here, the Union did not specify in its request why it want- ed such information or otherwise demonstrate the relevance of the information. This does not excuse, however, the Respondent’s failure to supply all the other information requested by the Union. Such in- formation clearly is presumptively relevant and the Respondent’s failure to provide the information on request violated Sec. 8(a)(5) of the Act. See id. Third, the Respondent asserts that more than 12 months have elapsed since the Union’s certification, that the Respondent at no time refused to recognize or bargain with the Union, that the presumption of the Union’s majority status is now rebuttable, and that a majority of the employees in the bargaining unit have submitted a petition to the Respondent stating that they no longer wish to be represented by the Union. The Respondent attaches a copy of the employee petition to its answer and contends that it no longer has a duty to recognize or bargain with the Union. We reject the Respondent’s defense. In order to as- sure the parties a reasonable time in which to bargain, the Board, with judicial approval, has adopted a rule requiring an employer, in the absence of unusual cir- cumstances, to honor a certification for a period of 1 year.9 Where, as here, the Respondent, through its re- fusal to bargain, has deprived the Union of that year, the Respondent will not be allowed to take advantage of its failure to comply with its statutory obligation. In such cases, we construe the certification year as com- mencing on the date on which the Respondent begins to bargain in good faith with the Union.10 Here, be- cause the Respondent has not yet begun to bargain in good faith, the certification year has not expired and the Union’s majority is irrebuttable absent unusual cir- cumstances. An employee petition expressing a desire to terminate representation by the certified collective- bargaining representative does not constitute an ‘‘un- usual circumstance’’ which would justify the Respond- ent’s refusal to bargain under Brooks, supra.11 Accord- ingly, the Respondent’s third defense is without merit. Finally, we find that there are no factual issues war- ranting a hearing regarding the Union’s request for in- formation. The complaint alleges that by letter dated March 24, 1994, the Union requested the following in- formation from the Respondent: 1. A copy of the payroll to include all employ- ees in the bargaining unit: their names, addresses, job titles, social security numbers, dates of hire and rates of pay; 2. A detailed listing of benefits with two (2) copies each of pertinent documents such as pen- sion plan, health insurance plan, life insurance, personnel manual, etc.; and 3. Job descriptions for all job classifications in the bargaining unit. In its answer, the Respondent denies that the infor- mation requested is relevant and necessary to the Union’s role as exclusive bargaining representative of the unit employees. It is well settled, however, that with the exception of employee social security num- bers, such information is presumptively relevant for purposes of collective bargaining and must be fur- nished on request.12 Accordingly, we grant the General Counsel’s Motion for Summary Judgment, deny the Respondent’s Cross- Motion for Summary Judgment, and order the Re- spondent to bargain and furnish the requested informa- tion with the exception of employee social security numbers. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, Sherwood Corporation d/b/a Parkview Manor, is a corporation with an office and place of business in Indianapolis, Indiana, where it has been engaged in the operation of a long-term health care facility. During the 12-month period ending April 1, 1994, the Respondent purchased and received at its Indianapolis, Indiana facility goods valued in excess of $50,000 directly from points outside the State of Indi- ana. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 8, 1993, the Union was certified on February 24, 1994, as the col- lective-bargaining representative of the employees in the following appropriate unit: All employees employed by the Employer at its 2424 E. 46th Street, Indianapolis, Indiana facility, including all licensed practical nurses, all graduate practical nurses, all qualified medicine aides, all certified nurse aides and all dietary, housekeeping, laundry and maintenance employees and the ac- tivities director and the medical records employ- ees, BUT EXCLUDING all office clerical em- ployees, all professional employees, all guards and supervisors as defined in the Act, and exclud- ing all supervisory charge nurses, all registered 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 13 The Order conforms to the new standard language recently set forth in Indian Hills Care Center, 321 NLRB 144 (1996). 14 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.’’ nurses, the respiratory therapist, the social service designee and the bookkeeper. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about April 25, 1994, the Union has requested the Respondent to bargain and to furnish information. Since about the same date, the Respondent has refused the Union’s requests. We find that this refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing, at least since April 25, 1994, 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 Re- spondent has engaged in unfair labor practices affect- ing 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. 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 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); and Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER13 The National Labor Relations Board orders that the Respondent, Sherwood Corporation d/b/a Parkview Manor, Indianapolis, Indiana, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with American Federation of State, County & Municipal Employees, Local 1199, the National Union of Hospital and Health Care Em- ployees, as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and nec- essary to its role as the exclusive bargaining represent- ative 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 employees employed by the Employer at its 2424 E. 46th Street, Indianapolis, Indiana facility, including all licensed practical nurses, all graduate practical nurses, all qualified medicine aides, all certified nurse aides and all dietary, housekeeping, laundry and maintenance employees and the ac- tivities director and the medical records employ- ees, BUT EXCLUDING all office clerical em- ployees, all professional employees, all guards and supervisors as defined in the Act, and exclud- ing all supervisory charge nurses, all registered nurses, the respiratory therapist, the social service designee and the bookkeeper. (b) Furnish the Union the information that it re- quested with the exception of employee social security numbers. (c) Within 14 days after service by the Region, post at its Indianapolis, Indiana facility, copies of the at- tached notice marked ‘‘Appendix.’’14 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent 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 ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since April 25, 1994. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. 481 PARKVIEW MANOR 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 American Fed- eration of State, County & Municipal Employees, Local 1199, the National Union of Hospital and Health Care Employees as the exclusive representative of the employees in the bargaining unit and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights 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 employees employed by us at our 2424 E. 46th Street, Indianapolis, Indiana facility, includ- ing all licensed practical nurses, all graduate prac- tical nurses, all qualified medicine aides, all cer- tified nurse aides and all dietary, housekeeping, laundry and maintenance employees and the ac- tivities director and the medical records employ- ees, BUT EXCLUDING all office clerical em- ployees, all professional employees, all guards and supervisors as defined in the Act, and exclud- ing all supervisory charge nurses, all registered nurses, the respiratory therapist, the social service designee and the bookkeeper. WE WILL furnish the Union the information that it requested with the exception of employee social secu- rity numbers. SHERWOOD CORPORATION D/B/A PARKVIEW MANOR