Visiting Homemaker Services

VISITING HOMEMAKER & HEALTH SERVICES Visiting Homemaker and Health Services, Inc. and JNESO. Case 4-CA-20328 May 13, 1992 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On February 27, 1992, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing alleging that the Respondent has violated Section 8(a)(1) and (5) of the National Labor Relations Act by refusing the Union's request to bargain following the Union's certification in Case 4-RC-17674. (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 its answer admitting in part and denying in part the allegations in the complaint. On April 9, 1992, the General Counsel filed a Motion for Summary Judgment and Memorandum of Support, with exhibits attached. On April 14, 1992, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain and to furnish information that is relevant and necessary to the Union's role as bargaining representative, but attacks the validity of the certification on the basis of the Board's unit determination in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. 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). The Respondent admits that if the Union was properly certified as the exclusive collective-bargaining representative, the information requested by the Union would be necessary and relevant. Therefore, there are no factual issues regarding the Union's request for information because the Respondent admitted that it refused to furnish the information. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a New Jersey corporation with an office and place of business in Mount Holly, New Jersey. During the year preceding issuance of the complaint, the Respondent derived gross revenues in excess of $1 million and purchased and received materials valued in excess of $3000 from points directly located outside the State of New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has been a health care institution within the meaning of Section 2(14) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On August 23, 1991, the Regional Director issued a Decision and Direction of Election.¹ An election was held on September 20, 1991; objections were filed and the election was set aside upon a stipulation of the parties. Following a second election held October 31, 1991, the Union was certified on November 12, 1991, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered and graduate nurses employed by Respondent at its Mount Holly, New Jersey facility, excluding all non-professional employees, confidential employees, managers, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since on or about November 22, 1991, the Union has requested the Respondent to bargain and to furnish information, and, since on or about November 22, 1991, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to 1 A panel of the Board, Member Oviatt dissenting, denied the Employer's request for review of the Regional Director's decision on September 20, 1991. 307 NLRB No. 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after November 22, 1991, to bargain with the Union as the exclusive collectivebargaining 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 Section 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 understanding 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 services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date the Respondent 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, Visiting Homemaker and Health Services, Inc., Mount Holly, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with JNESO as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time registered and graduate nurses employed by Respondent at its Mount Holly, New Jersey facility, excluding all non-professional employees, confidential employees, managers, guards and supervisors as defined in the Act. (b) On request, furnish the Union information that is relevant and necessary to its role as the exclusive representative of the unit employees. (c) Post at its facility in Mount Holly, New Jersey, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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 ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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." 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with JNESO 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: VISITING HOMEMAKER & HEALTH SERVICES All full-time and regular part-time registered and graduate nurses employed by Respondent at its Mount Holly, New Jersey facility, excluding all non-professional employees, confidential employees, managers, guards and supervisors as defined in the Act. VISITING HOMEMAKER AND HEALTH SERVICES, INC.