Fair Oaks Health Care Center

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Mid America Care Foundation d/b/a Fair Oaks Health Care Center and Teamsters Local Union 325, International Brotherhood of Team­ sters, AFL–CIO. Case 33–CA–12001 April 2, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on November 20, 1996, the General Counsel of the National Labor Relations Board issued a complaint on January 2, 1997, 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 certifi­ cation in Case 33–RC–4070 (a/k/a 19–RC–13230). (Official notice is taken of the ‘‘record’’ in the rep­ resentation 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 and an amended answer admitting in part and denying in part the allegations in the complaint. Thereafter, counsel for the Respondent and counsel for the General Counsel entered into a stipulation concern­ ing certain allegations of the complaint. On March 17, 1997, the General Counsel filed a Motion for Summary Judgment. On March 18, 1997, 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. On March 21, 1997, the Respondent filed a response. Ruling on Motion for Summary Judgment In its answers and response, and in the stipulation, the Respondent admits its refusal to bargain and to fur­ nish information, but attacks the validity of the certifi­ cation on the basis of its contention that the unit was improperly certified by the Board in the representation proceeding because the unit contains supervisors as de- fined in Section 2(11) of the Act as well as profes­ sional and technical employees, office clerical, and confidential employees. 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 there are no factual issues requir­ ing a hearing with respect to the Union’s request for information. The Union requested the following infor­ mation from the Respondent: (1) A current list of all unit employees, their work histories, classifications, seniority dates and pay roll histories. (2) Documents and all other relevant informa­ tion that demonstrate and explain all current work rules, practices and procedures concerning dis­ cipline and job assignments or reassignments etc. (3) Documents and all other relevant informa­ tion regarding all benefits inclusive of pension plan, insurance, vacations, sick days, holidays, and bereavement, as well as any other data that may be pertinent to meaningful negotiations. The Respondent’s answer admits that the Respondent refused to provide this information to the Union. Fur­ ther, although the Respondent’s answer effectively de­ nies that the information requested is necessary and relevant to the Union’s duties as the exclusive rep­ resentative of the unit employees, it is well established that such information is presumptively relevant and, unless the presumption is rebutted, must be furnished on request. See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1977). Accordingly we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, an Illinois corporation, with an office and place of business in South Beloit, Illinois, has been engaged in the business of health care as a long-term care facility. During the 12-month period ending December 31, 1995, the Re­ spondent, in conducting its business operations de- scribed above, derived gross revenues in excess of $1 million and purchased and received at its South Beloit, Illinois facility materials or services valued at more than $50,000 directly from points outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor 1 Member Higgins did not participate in the underlying representa­ tion proceeding. However, he agrees with his colleagues that the Re­ spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro­ ceeding warranting a hearing. 323 NLRB No. 60 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on July 24, 1996, the Union was certified on September 12, 1996, as the ex­ clusive collective–bargaining representative of the em­ ployees in the following appropriate unit: All full-time and regular part-time non-profes­ sional employees employed by the Employer at its South Beloit, Illinois facility; but excluding all of­ fice clerical employees, registered nurses, guards and supervisors as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since September 24 and October 25, 1996, the Union has requested the Respondent to bargain and to furnish information, and, since September 24, 1996, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after September 24, 1996, to bargain with the Union as the exclusive collective-bar- gaining 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. 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); 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, Mid America Care Foundation d/b/a Fair Oaks Health Care Center, South Beloit, Illinois, its of­ ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union 325, International Brotherhood of Teamsters, AFL– CIO as the exclusive bargaining representative of the employees in the bargaining unit, and refusing 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. (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 non-profes­ sional employees employed by the Employer at its South Beloit, Illinois facility; but excluding all of­ fice clerical employees, registered nurses, guards and supervisors as defined by the Act. (b) On request, furnish the Union information that is relevant and necessary to its role as the exclusive rep­ resentative of the unit employees. (c) Within 14 days after service by the Region, post at its facility in South Beloit, Illinois, copies of the at­ tached notice marked ‘‘Appendix.’’2 Copies of the no­ tice, on forms provided by the Regional Director for Region 33 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 November 20, 1996. 2 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.’’ FAIR OAKS HEALTH CARE CENTER 3 (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 the Respondent has taken to comply. Dated, Washington, D.C. April 2, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 Teamsters Local Union 325, International Brotherhood of Team­ sters, AFL–CIO 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 full-time and regular part-time non-profes­ sional employees employed by us at our South Beloit, Illinois facility; but excluding all office clerical employees, registered nurses, guards and supervisors as defined by the Act. WE WILL furnish the Union the information that it requested on September 24 and October 25, 1996. MID AMERICA CARE FOUNDATION D/B/A FAIR OAKS HEALTH CARE CENTER The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with TEAMSTERS LOCAL UNION 325, INTERNATIONAL BROTH­ ERHOOD OF TEAMSTERS, AFL–CIO as the exclusive representative of the employees in the bar- gaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and nec­ essary 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 full-time and regular part-time non-professional employees employed by us at our South Be­ loit, Illinois facility; but excluding all office clerical employees, registered nurses, guards and su­ pervisors as defined by the Act. WE WILL furnish the Union the information that it requested on September 24 and October 25, 1996. MID AMERICA CARE FOUNDATION d/b/a FAIR OAKS HEALTH CARE CENTER (Employer) Dated By (Representative) (Title) 300 Hamilton Boulevard, Suite 200, Peoria, Illinois 61602-1246, Telephone 309–671–7068. 5