McLaren Medical Management

MCLAREN MEDICAL MANAGEMENT 1297 McLaren Medical Management, Inc., a wholly-owned subsidiary of McLaren Health Care Corp. and Local 459, Office and Professional Employees’ International Union, AFL–CIO. Case 7–CA– 43291 November 20, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND HURTGEN Pursuant to a charge filed on August 15, 2000, the General Counsel of the National Labor Relations Board issued a complaint on August 24, 2000, 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 certifications in Cases 7–RC–21705, 7–RC– 21706, and 7–RC–21707. (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 deny- ing in part the allegations in the complaint. On September 27, 2000, the General Counsel filed a Mo- tion for Summary Judgment. On September 29, 2000, 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 attacks the validity of the certifications on the basis of the Board’s unit deter- minations in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding.1 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.2 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). 1 Member Hurtgen did not participate in the Board’s denial of the Employer’s request for review of the Acting Regional Director’s Deci- sion and Direction of Elections. He finds, however, that the Respon- dent has not raised any new matters that are properly litigable in this unfair labor practice proceeding. 2 Although the Respondent in its answer denies that it has refused to bargain with the Union (and that it has refused to provide requested information), the denials are based on the Respondent’s position that the certified units are not appropriate for purposes of collective bargain- ing. Further, the General Counsel attached to the complaint a copy of an August 10, 2000 letter, sent by the Respondent to the Union, in which the Respondent stated that it “decline[d] to participate in negotia- tions” and “decline[d] to provide any information requested.” The Respondent does not dispute the validity of the letter. In addition, it is clear from the Respondent’s response to the Notice to Show Cause that the Respondent contends that it is under no legal obligations to bargain with, and provide information to, the Union solely on the ground that the certifications are invalid. Accordingly, we find that the Respon- dent’s denials raise no material issue of fact warranting a hearing. We also find that there are no issues warranting a hear- ing with respect to the Union’s request for information. The Respondent admits that by letters dated July 25 and 26, 2000, the Union requested that the Respondent fur- nish it with the following information: 1. A list of current MMMI bargaining unit employ- ees with home addresses. 2. The current employee Policies and Procedures Manual. 3. A list of team leaders employed by MMMI in classifications covered by the bargaining unit and their rate of pay. 4. A list of casual employees employed by MMMI in classifications covered by the bargaining unit and their rate of pay. 5. A list of Occupational Health Sales Consultants and Occupational Health Account Reps employed by the Employer and their rate of pay. Although the Respondent denies that this information is necessary for, and relevant to, the union’s performance of its duties as collective-bargaining representative, it does so because it argues that the certified units are not appropriate for the purposes of collective bargaining. We reject this contention and find that the information as listed under items 1–4 relates to unit employees and is presumptively relevant. Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1977). The Respondent has not attempted to rebut the relevance of the information requested in items 1–4, and we therefore find that no material issues of fact exist with respect to the Re- spondent’s refusal to furnish this information. Relevance cannot be presumed, however, with respect to item 5 because it appears to pertain to employees out- side the bargaining unit. In these circumstances, the Un- ion has the “initial burden to show relevancy.” NLRB v. Associated General Contractors, 633 F.2d 766, 770 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981). Here, the Union did not specify in its request why it wanted a list of occupational health sales consultants and occupational health account reps employed by the Respondent and their rate of pay. Furthermore, neither the complaint nor 332 NLRB No. 126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1298 the motion for summary judgment explain why the Re- spondent had an obligation to provide this information. Accordingly, we deny the Motion for Summary Judg- ment with respect to the information requested in item 5 and remand this issue to the Regional Director for further appropriate action. In all other respects, we grant the Motion for Summary Judgment, and we will order the Respondent to bargain and to furnish the requested in- formation, with the exception of a list of occupational health sales consultants and occupational health account reps employed by the Respondent and their rate of pay. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with offices and facilities located throughout the State of Michigan, has been engaged in the operation of provid- ing health care services. During the year ending Decem- ber 31, 1999, the Respondent, in conducting its opera- tions described above, received gross revenues in excess of $250,000 and purchased goods valued in excess of $50,000 from points located outside the State of Michi- gan and caused those goods to be shipped directly to its State of Michigan facilities. 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 27, 2000, the Union was certified on May 5, 2000, in Cases 7–RC–21706 and 7–RC–21707, and on May 17, 2000, in Case 7–RC– 21705, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate units (individually called the paraprofessional, technical and RN units and collectively called the units): PARAPROFESSIONAL UNIT (Case 7–RC–21705): All full-time and regular part-time paraprofessional employees of the Respondent at its facilities, excluding teaching practices, in the counties of Ingham, Eaton, Ionia, and Clinton, including all receptionists, medical assistants, medical records clerks, and physician billing clerks; but excluding professional employees, technical employees, confidential employees, managerial em- ployees, guards, and supervisors as defined in the Act. TECHNICAL UNIT (Case 7–RC–21706): All full-time and regular part-time technical employees employed by the Respondent at its facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton, including licensed practical nurses and radiologic technologists; but excluding pro- fessional employees, confidential employees, manage- rial employees, guards, and supervisors as defined in the Act. RN UNIT (Case 7–RC–21707): All full-time and regular part-time registered nurses em- ployed by the Respondent at its facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton; but excluding physician assis- tants, nurse practitioners, nurse midwives, all other pro- fessional employees, technical employees, confidential employees, managerial employees, guards, and supervi- sors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since July 25 and 26, 2000, the Union, by letters, has requested the Respondent to bargain in each of the units and to furnish information, and, since August 10, 2000, the Respondent, by letter, has refused. We find that these refusals constitute unlawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 10, 2000, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate units and to furnish the Union items 1–4 of the requested informa- tion, the Respondent has engaged in unfair labor prac- tices 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 un- derstanding is reached, to embody the understanding in a signed agreement. We also shall order the Respondent to furnish the Union items 1–4 of the requested information. 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 certifica- tion 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). MCLAREN MEDICAL MANAGEMENT 1299 ORDER The National Labor Relations Board orders that the Respondent, McLaren Medical Management, Inc., a wholly-owned subsidiary of McLaren Health Care Cor- poration, Flint and Lansing, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 459, Office and Professional Employees’ International Union, AFL–CIO, as the exclusive bargaining representative of the employ- ees in the individually named bargaining units, and refus- ing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining represen- tative of the employees in the units. (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 exclusive representative of the employees in the following appro- priate units, individually named the paraprofessional, technical, and RN units, on terms and conditions of em- ployment, and if an understanding is reached, embody the understanding in a signed agreement: PARAPROFESSIONAL UNIT (Case 7–RC–21705): All full-time and regular part-time paraprofessional employees of the Respondent at its facilities, excluding teaching practices, in the counties of Ingham, Eaton, Ionia, and Clinton, including all receptionists, medical assistants, medical records clerks, and physician billing clerks; but excluding professional employees, technical employees, confidential employees, managerial em- ployees, guards, and supervisors as defined in the Act. TECHNICAL UNIT (Case 7–RC–21706): All full-time and regular part-time technical employees employed by the Respondent at its facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton, including licensed practical nurses and radiologic technologists; but excluding pro- fessional employees, confidential employees, manage- rial employees, guards, and supervisors as defined in the Act. RN UNIT (Case 7–RC–21707): All full-time and regular part-time registered nurses em- ployed by the Respondent at its facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton; but excluding physician assis- tants, nurse practitioners, nurse midwives, all other pro- fessional employees, technical employees, confidential employees, managerial employees, guards, and supervi- sors as defined in the Act. (b) Furnish the Union the information it requested on July 25 and 26, 2000, with the exception of a list of oc- cupational health sales consultants and occupational health account reps employed by the Respondent and their rate of pay. (c) Within 14 days after service by the Region, post at its facilities located in the counties of Ingham, Eaton, Ionia, and Clinton in the State of Michigan, copies of the attached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 7 after being signed by the Respondent’s authorized representative, 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 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 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 current em- ployees and former employees employed by the Respondent at any time since August 10, 2000. (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. IT IS FURTHER ORDERED that the allegations in the complaint regarding the Respondent’s refusal to pro- vide information to the Union in item 5 is remanded to the Regional Director for further appropriate action. 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 Local 459, Of- fice and Professional Employees International Union, AFL–CIO, as the exclusive bargaining representative of the employees in the individually named bargaining 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1300 units, 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 em- ployees. 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 indi- vidually named bargaining units: PARAPROFESSIONAL UNIT: All of our full-time and regular part-time paraprofes- sional employees at our facilities, excluding teaching practices, in the counties of Ingham, Eaton, Ionia, and Clinton, including all receptionists, medical assistants, medical records clerks, and physician billing clerks; but excluding professional employees, technical employ- ees, confidential employees, managerial employees, guards, and supervisors as defined in the Act. TECHNICAL UNIT: All full-time and regular part-time technical employees employed by us at our facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton, including licensed practical nurses and radiologic technologists; but excluding professional employees, confidential employees, managerial em- ployees, guards, and supervisors as defined in the Act. RN UNIT: All full-time and regular part-time registered nurses employed by us at our facilities, excluding teaching practices, located in the counties of Ingham, Eaton, Ionia, and Clinton; but excluding physician assistants, nurse practitioners, nurse midwives, all other profes- sional employees, technical employees, confidential employees, managerial employees, guards, and super- visors as defined in the Act. WE WILL furnish the Union the information it re- quested on July 25 and 26, 2000, with the exception of a list of occupational health sales consultants and occupa- tional health account reps employed by us and their rate of pay. MCLAREN MEDICAL MANAGEMENT, INC., A WHOLLY-OWNED SUBSIDIARY OF MCLAREN HEALTH CARE CORPORATION