Health Care Service Group

HEALTH CARE SERVICES GROUP 1301 Health Care Services Group, Inc. and 1115 Florida Division of 1199, Service Employees Interna- tional Union, AFL–CIO, CLC. Case 12–CA– 20920 November 20, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on June 27, 2000, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on July 24, 2000, 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 following the Union’s certification in Case 12–RC–8066 as amended by stipulation of the par- ties in 12–AC–39. (Official notice is taken of the “re- cord” 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 29, 2000, the General Counsel filed a Motion for Summary Judgment. On October 4, 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 admits its refusal to bar- gain and to furnish information that is alleged to be rele- vant and necessary to the Union’s role as bargaining rep- resentative, but attacks the validity of the certification on the basis of its objections to the election in the represen- tation proceeding. 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 issues warranting a hear- ing with respect to the Union’s request for information. The Respondent admits that by letters dated January 21 and June 28, 2000, the Union requested that the Respon- dent furnish it with the following information: 1. A list of current employees, including their names, dates of hire, rates of pay, job classification, department, last known address, and phone number; 2. A copy of all current company personnel policies and procedures which relate to or have an effect on bar- gaining unit employees, including but not limited to, leave of absence, shifts, starting times, hiring rules, safety rules, vacation, holidays, and overtimes; 3. A copy of all company fringe benefit plans, includ- ing pension, profit sharing, severance, stock initiative, health insurance, apprenticeship, training, legal services, child care, or any other plans which relate to the employ- ees, and where applicable, copies of summary plan de- scriptions for such plans; 4. Copies of all current job descriptions for bargaining unit employees; 5. Copies of any company wage and salary plans, in- cluding schedules for employees on incentive jobs; 6. Copies of OSHA 200 logs for the past three years; 7. The Cost Report files with the AHCA for the last 3 years; 8. Any and all agreements signed with all subcontrac- tors that relate to the bargaining unit employees’ jobs, wages, benefits, and working conditions. In its answer, the Respondent admits only that “cer- tain” of this information is necessary and relevant for purposes of collective bargaining. We find that with exception of the cost and subcontracting information requested in Items 7 and 8, the foregoing types of infor- mation are presumptively relevant for purposes of collec- tive bargaining and must be furnished on request.1 The Respondent has not attempted to rebut the relevance of the information requested in items 1-6, and we therefore find that no material issues of fact exist with respect to the Respondent’s refusal to furnish this information. 1 Zeta Consumer Products Corp., 326 NLRB 293 (1998) (OSHA 200 logs); Trustees of Masonic Hall, 261 NLRB 436 (1982) (compen- sation and employment information); Mobay Chemical Corp., 233 NLRB 109 (1977)(same). Item 7’s reference to the “Cost Report files with the AHCA” is not further explained in the record, but it appears that the Union was seek- ing financial information. The Board has held that financial informa- tion is not presumptively relevant and that the union must therefore demonstrate the relevance of the information. See Troy Hills Nursing Home, 326 NLRB 1465 (1998). Similarly, the Board has held that the subcontracting information sought in Item 8 is not presumptively rele- vant. Associated Ready Mixed Concrete, 318 NLRB 318 (1995), enfd. 108 F. 3d 1182 (9th Cir. 1997). Here, neither the complaint nor the motion for summary judgment explain why the Respondent had an obligation to provide the cost and subcontracting information. We therefore deny the General Counsel’s Motion for Summary Judgment with respect to the information requested in Items 7 and 8, and we remand those issues to the Regional Director for further appropriate action. 332 NLRB No. 127 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1302 Accordingly, we grant the Motion for Summary Judg- ment, and we will order the Respondent to bargain and to furnish the requested information, with the exception of the cost and subcontracting information requested in Items 7 and 8. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation, with an office and place of business at Mar- gate, Florida, has been engaged in the business of provid- ing laundry and housekeeping services to various nursing homes in the State of Florida, including Richmond Health Care d/b/a Sunrise Health and Rehabilitation Cen- ter, at 4800 Nob Hill Road, Sunrise, Florida. During the 12 months prior to issuance of the complaint, the Re- spondent, in conducting its business operations, derived gross revenues in excess of $100,000, and during that same time period purchased and received goods valued in excess of $50,000 directly from points outside the State of Florida. We find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 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 election held May 9, 1997, the Union was certified on July 22, 1999, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time laundry and house- keeping employees employed by Respondent at Rich- mond Health Care d/b/a Sunrise Health and Rehabilita- tion Center in Sunrise, Florida; excluding all other em- ployees, office clerical employees, guards and supervi- sors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act.2 B. Refusal to Bargain Since January 21, 2000, the Union has requested the Respondent to recognize and bargain with it as the exclu- sive collective-bargaining representative of the unit, and to furnish information, and, since January 21, 2000, the 2 As alleged in the complaint and admitted in the Answer, on June 13, 2000, in Case 12–CA–39, the Regional Director for Region 12 of the Board, pursuant to stipulations executed by the Respondent and the Union, amended the certification issued in Case 12–RC–8066 to substi- tute the Union as the certified union with respect to the unit. Respondent has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after January 21, 2000, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit and to furnish the Union requested infor- mation, 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 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 by letters dated January 21 and June 28, 2000, with the ex- ception of the cost and subcontracting 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 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, Health Care Services Group, Inc., Margate, Florida its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with 1115 Florida Division of 1199, Service Employees International Union, 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 neces- sary to its role as the exclusive bargaining 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 exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment, and if HEALTH CARE SERVICES GROUP 1303 an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time laundry and house- keeping employees employed by Respondent at Rich- mond Health Care d/b/a Sunrise Health and Rehabilita- tion Center in Sunrise, Florida; excluding all other em- ployees, office clerical employees, guards and supervi- sors as defined in the Act. (b) Furnish the Union the information it requested on January 21 and June 28, 2000, with the exception of the cost and subcontracting information. (c) Within 14 days after service by the Region, post at its facility in Margate, Florida, and at the Sunrise Health and Rehabilitation Center facility in Sunrise, Florida, copies of the attached notice marked “Appendix.”3 Cop- ies of the notice, on forms provided by the Regional Di- rector for Region 12 after being signed by the Respon- dent’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 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 proceedings, the Re- spondent shall duplicate 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 January 21, 2000. (c) 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. IT IS FURTHER ORDERED that the allegations in the complaint with respect to the information requested in Items 7 and 8 are remanded to the Regional Director for further appropriate action. 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.” 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with 1115 Florida Division of 1199, Service Employees International Un- ion, 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 rele- vant 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 laundry and house- keeping employees employed by us at Richmond Health Care d/b/a Sunrise Health and Rehabilitation Center in Sunrise, Florida; excluding all other employ- ees, office clerical employees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information it re- quested on January 21 and June 28, 2000, with the ex- ception of the cost and subcontracting information. HEALTH CARE SERVICES GROUP, INC.