Midland King's Daughters Home

MIDLAND KING’S DAUGHTERS HOME 907 Midland King’s Daughters Home and Local 79, Ser- vice Employees International Union, AFL–CIO. Case 7–CA–43024(1) October 26, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on May 4, 2000, the General Counsel of the National Labor Relations Board issued a complaint on May 24, 2000, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National La- bor Relations Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 7–RC– 21726. (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 denying in part the allegations in the complaint. On June 20, 2000, the General Counsel filed a Motion for Summary Judgment. On June 21, 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 relevant and nec- essary to the Union’s role as the exclusive collective- bargaining representative, but attacks the validity of the certification on the basis of the Board’s unit determina- tion in the representation proceeding. To the extent that the Respondent argues, as it did in the underlying certification case, that the unit employ- ees—registered and licensed practical nurses—are super- visors under the decisions of certain courts of appeals, we note that the Supreme Court has recently granted cer- tiorari to resolve the conflict in the circuits over the meaning of the term “independent judgment” in Section 2(11), as well as the issue of which party has the burden of proof in establishing supervisory status. NLRB v. Kentucky River Community Care, 530 U.S. 1304 (2000). Resolution of those issues will directly resolve the question whether the Regional Director applied a reason- able legal standard in determining that the nurses’ routine exercise of professional or technical judgment in direct- ing aides in delivering services in accordance with pa- tient care plans did not make them supervisors. In our judgment, resolution of those issues also bears on the Respondent’s contention that nurses have 2(11) authority to send aides home for extreme and flagrant violations of its rules. Thus, resolution of the independent judgment issue bears on the question whether independent judg- ment is required in order to apply the Respondent’s rules in such extreme situations. And, resolution of the burden of proof issue bears on the question whether the Respon- dent has established that sending home authority is 2(11) “discipline” where, as here, the record does not establish what, if any, adverse action would result in the event an aide were sent home by a nurse. Cf. NLRB v. City Yel- low Cab Co., 344 F.2d 575, 581 (6th Cir. 1965) (author- ity of operators to call drivers in off the road not supervi- sory where conceded supervisors would decide whether to allow the driver to go back to work, and where there was no substantial period of suspension unless imposed by the conceded 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). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Michigan cor- poration, has been engaged in the operation of a nursing home and home for the aged services at its facility in Midland, Michigan. During the calendar year ending December 31, 1999, the Respondent, in conducting its business operations, received gross revenues in excess of $500,000 and purchased and received goods valued in excess of $10,000 directly from other enterprises located within the State of Michigan, each of which received goods and materials directly from points located outside the State of Michigan. 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 an election, the Union was certified on Feb- ruary 18, 2000, as the exclusive collective-bargaining 332 NLRB No. 85 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908 representative of the employees in the following appro- priate unit: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Employer at its facility located at 2410 Rodd Street, Midland, Michigan, but excluding all service employees, guards, and supervisors 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 February 25, 2000, the Union has requested the Respondent to bargain and to furnish information that is necessary and relevant to its role as the collective- bargaining representative, and, since March 6, 2000, the Respondent has refused. Specifically, the complaint al- leges that the Union requested the name, wage rate, job classification, and date of hire for each employee in the unit; copy of employee benefit plans, personnel policies and work rules; and job descriptions for each classifica- tion in the unit. The Union also requested information as to IRS Forms and Medicaid reimbursement. That re- quest was not included in the General Counsel’s com- plaint and we, therefore, do not pass on it here. We find that the refusals to furnish the information enumerated in the General Counsel’s complaint 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 March 6, 2000, to bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit and to furnish the Union requested information, the Re- spondent 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 Respon- dent to furnish the Union with the information requested in its letter of February 25, 2000, with the exception of information as to IRS forms and Medicaid reimburse- ment. 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, Midland King’s Daughters Home, Midland, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 79, Service Em- ployees International Union, AFL–CIO, as the exclusive bargaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union informa- tion that is relevant and necessary to its role as the exclu- sive 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 an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Employer at its facility located at 2410 Rodd Street, Midland, Michigan, but excluding all service employees, guards, and supervisors as defined in the Act. (b) Furnish the Union with the following information requested in its letter of February 25, 2000: the name, wage rate, job classification, and date of hire for each employee in the unit; copy of employee benefit plans, personnel policies and work rules; and job descriptions for each classification in the unit. (c) Within 14 days after service by the Region, post at its facility in Midland, Michigan, copies of the attached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- 1 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.” MIDLAND KING’S DAUGHTERS HOME 909 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 March 6, 2000. (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. 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 79, Ser- vice Employees International Union, AFL–CIO, as the exclusive representative of the employees in the bargain- ing 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 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 bar- gaining unit: All full-time and regular part-time registered nurses and licensed practical nurses employed by us at our facility located at 2410 Rodd Street, Midland, Michigan, but excluding all service employees, guards, and supervi- sors as defined in the Act. WE WILL furnish the Union with the following in- formation requested in its letter of February 25, 2000: the name, wage rate, job classification, and date of hire for each employee in the unit; copy of employee benefit plans, personnel policies and work rules; and job descrip- tions for each classification in the unit. MIDLAND KING’S DAUGHTERS HOME