Golden Crest Healthcare Center

329 NLRB No. 22 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Beverly Enterprises—Minnesota, Inc. d/b/a Golden Crest Healthcare Center and United Steelwork- ers of America, AFL–CIO–CLC. Case 18–CA– 15295 September 17, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on July 19, 1999, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on July 29, 1999, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain and to provide information following the Union’s certification in Cases 18–RC–16415 and 18– RC–16416. (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, with affirmative defenses, admitting in part and denying in part the allegations in the complaint. On August 23, 1999, the General Counsel filed a Mo- tion for Summary Judgment and Brief in Support. On August 24, 1999, 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 three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain and to furnish information, but attacks the validity of the certification on the basis of its claim in the repre- sentation proceeding that the individuals in the bargain- ing unit are statutory supervisors. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances 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 un- fair 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 warranting a hearing with respect to the Union’s requests to bargain and for information. The Respondent’s answer admits that the Union requested it to bargain and to furnish in- formation and further admits that it has refused to bar- gain and to provide the requested information. In its April 29, 1999 letter, the Union requested the following information from the Respondent: 1. A listing of the names, addresses, Social Security numbers, job title, date of hire, date of birth, present wage rate and the date of their last pay increase, how much the pay increase was and the number of hours per pay period each works. 2. Names of those in the above-referenced unit who have health insurance coverage and whether it’s single coverage or family, the amount the employee has to pay for this coverage and the total cost of the single premium and the family premium. 3. The same information in item number two for dental coverage. 4. Any present policy manual that the unit is under. 5. Job descriptions for each job in the unit. 6. Information as to holiday benefits, vacation benefits, sick leave benefits, life insurance, pension benefits, etc. The Respondent’s answer admits that the Respondent refused to provide this information to the Union. Fur- ther, although the Respondent’s answer denies that the information requested is necessary and relevant to the Union’s duties as the exclusive bargaining representative of the unit employees, it appears to do so based on its assertion that it is not obliged to recognize and bargain with the Union because the unit is composed of statutory supervisors as defined by Section 2(11) of the Act. In any event, it is well established that, with the exception of the employees’ social security numbers,1 all of the foregoing types of information are presumptively rele- vant for purposes of collective bargaining and must be furnished on request. See Maple View Manor, Inc., 320 NLRB 1149 (1996); Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1977). Accordingly, we grant the Motion for Summary Judg- ment and will order the Respondent to bargain and to furnish the requested information with the exception of employees’ social security numbers. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Minnesota corporation with an office and place of business in Hibbing, Minnesota, has been engaged in the operation 1 Parkview Manor, 321 NLRB 477, 479 fn. 12 (1996). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 of nursing home facilities, including a skilled nursing facility at its Hibbing, Minnesota location. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent, in conducting its business operations, derived gross reve- nues in excess of $1 million and purchased and received at its Hibbing, Minnesota facility goods valued in excess of $50,000 directly from points outside the State of Min- nesota. 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 that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the elections held April 8, 1999, the Union was certified on April 15, 1999, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit:2 All full-time and regular part-time registered nurses and licensed practical nurses employed by the Employer at its Hibbing, Minnesota facility; excluding guards and supervisors as defined in the Act, and all other employ- ees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain At all times since April 15 and 29, 1999, respectively, the Union has requested the Respondent to bargain and to furnish information and, since April 29, 1999, the Re- spondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after April 29, 1999, 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 Respondent 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 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 Respon- 2 Elections were held among both the professional and nonprofes- sional employees. Both groups voted in favor of the Union and the professional employees also voted for inclusion in the unit with nonpro- fessional employees. dent to furnish the Union the information requested with the exception of employees’ social security numbers. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification 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, Beverly Enterprises—Minnesota, Inc. d/b/a Golden Crest Healthcare Center, Hibbing, Minnesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Steelworkers of America, AFL–CIO, CLC, 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 bar- gaining representative of the unit employees. (b) In any like or related manner interfering with, re- straining, 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 employment and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Employer at its Hibbing, Minnesota facility; excluding guards and supervisors as defined in the Act, and all other employ- ees. (b) Furnish the Union the information that it requested on April 29, 1999, with the exception of employees’ so- cial security numbers. (c) Within 14 days after service by the Region, post at its facility in Hibbing, Minnesota, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 18 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GOLDEN CREST HEALTHCARE CENTER 3 tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 29, 1999. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 17, 1999 John C. Truesdale, Chairman Sarah M. Fox, Member Wilma B. Liebman, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Steelworkers of America, AFL–CIO, CLC, 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 representa- tive 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 bar- gaining unit: All full-time and regular part-time registered nurses and licensed practical nurses employed by us at our Hibbing, Minnesota facility; excluding guards and su- pervisors as defined in the Act, and all other employ- ees. WE WILL furnish the Union the information it requested on April 29, 1999 with the exception of employees’ so- cial security numbers. BEVERLY ENTERPRISES—MINNESOTA, INC. D/B/A GOLDEN CREST HEALTHCARE CENTER