Dubuque Nursing

330 NLRB No. 4 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. Care Initiatives, Inc. d/b/a Dubuque Nursing & Rehab Center and General Drivers and Helpers Local Union No. 421 affiliated with the Interna- tional Brotherhood of Teamsters, AFL–CIO. Case 33–CA–13076 November 15, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on August 16, 1999, the General Counsel of the National Labor Relations Board issued a complaint on September 16, 1999, 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 information following the Union’s certification in Case 33–RC–4373. (Official notice is taken of the “record” in the representation pro- ceeding 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 com- plaint. On October 21, 1999, the General Counsel filed a Mo- tion for Summary Judgment. On October 22, 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 disagreement with the Board’s determination in the representation proceed- ing that the licensed practical nurses are employees and included in the bargaining unit. 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 admits that by let- ters dated July 19 and August 5, 1999, the Union re- quested the Respondent to furnish it with the following information: a current list of all bargaining unit employ- ees including the employee’s name, address, telephone number, department, and date of hire. The Respondent’s answer admits that it refused to provide this information, but denies that the information requested is relevant and necessary for the Union’s role as the exclusive bargain- ing representative of the unit employees. It is well es- tablished, however, that information concerning the terms and conditions of employment of unit employees is presumptively relevant and must be furnished on request. See, e.g., Masonic Hall, 261 NLRB 436, 437 (1982); and Mobay Chemical Corp., 233 NLRB 109, 110 (1977). The Respondent has not attempted to rebut the relevance of the information requested by the Union. Accordingly, we grant the Motion for Summary Judg- ment1 and will order the Respondent to recognize and bargain with the Union and to furnish it the information requested. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Texas corpo- ration, with an office and place of business in Dubuque, Iowa, has been engaged in the business of operating a nursing home involved in long-term care. During the past calendar year, the Respondent, in con- ducting its business operations, derived gross revenues in excess of $100,000. 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 a health care institution within the meaning 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 February 26, 1999,2 the Union was certified on July 9, 1999, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time Technical, Service and Maintenance employees including non-supervisory LPN’s, nursing aides, medication aides, dietary aides, 1 The Respondent’s request to dismiss the complaint is therefore de- nied. 2 In its answer the Respondent denies that on or about February 26, 1999, pursuant to a Stipulated Election Agreement a majority of the unit selected the Union as the exclusive bargaining representative of the employees. Because the record in the underlying representation pro- ceeding clearly shows that the election was conducted and a tally of ballots issued and because the Respondent admits the issuance of the Board’s Certification of Representative, its denial of the conduct of the election is without merit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 medical secretary, and housekeeping, maintenance and laundry workers employed by the Employer at its Du- buque, Iowa facility; but excluding office clerical em- ployees, professional employees, subcontractors, casual and on-call employees, guards and supervisors as de- fined by the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain At all times since July 9, 1999, the Union has re- quested the Respondent to bargain, and, on July 19, and August 5, 1999, the Union requested, by letters, the Re- spondent to furnish information. Since August 9, 1999, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after August 9, 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- dent 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 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, Care Initiatives, Inc. d/b/a Dubuque Nursing & Rehab Center, Dubuque, Iowa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with General Drivers and Helpers Local Union No. 421 affiliated with the Interna- tional Brotherhood of Teamsters, AFL–CIO as the exclu- sive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union infor- mation that is relevant and necessary to its role as the exclusive bargaining representative of the unit employ- ees. (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 Technical, Service and Maintenance employees including non-supervisory LPN’s, nursing aides, medication aides, dietary aides, medical secretary, and housekeeping, maintenance and laundry workers employed by the Employer at its Du- buque, Iowa facility; but excluding office clerical em- ployees, professional employees, subcontractors, casual and on-call employees, guards and supervisors as de- fined by the Act. (b) Furnish the Union the information that it requested on July 19 and August 5, 1999. (c) Within 14 days after service by the Region, post at its facility in Dubuque, Iowa, copies of the attached no- tice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent 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 Respon- dent 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 Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since August 9, 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. November 15, 1999 John C. Truesdale, Chairman 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.” DUBUQUE NURSING & REHAB CENTER 3 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 General Drivers and Helpers Local Union No. 421 affiliated with the In- ternational Brotherhood of Teamsters, AFL-CIO, as the exclusive representative of the employees in the bar- gaining unit, and WE WILL NOT refuse to furnish the Un- ion 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 bar- gaining unit: All full-time and regular part-time Technical, Service and Maintenance employees including non-supervisory LPN’s, nursing aides, medication aides, dietary aides, medical secretary, and housekeeping, maintenance and laundry workers employed by us at our Dubuque, Iowa facility; but excluding office clerical employees, pro- fessional employees, subcontractors, casual and on-call employees, guards and supervisors as defined by the Act. WE WILL furnish the Union the information it requested on July 19 and August 5, 1999. CARE INITIATIVES, D/B/A DUBUQUE NURSING & REHAB CENTER