Jewish Hospital & Rehabilitation Center Of N.J.

354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jewish Hospital & Rehabilitation Center of N.J. and District 1199J, National Union of Hospital and Health Care Employees , AFL-CIO. Case 22- CA-14244 16 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon a charge filed by the Union 5 February 1986, the General Counsel of the National Labor Relations Board issued a complaint 26 February 1986 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 6 December 1985, following a Board election in Cases 22-RC-9442, 22-RC-9443, and 22-RC-9444, the Union was cer- tified as the exclusive collective-bargaining repre- sentative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as de- fined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982). The complaint further alleges that since 7 January 1986, the Company has refused to pro- vide the Union with requested information relevant to collective bargaining and since that date has re- fused to bargain with the Union. The Company timely filed its answer admitting in part and deny- ing in part the allegations in the complaint. On 24 March 1986 the General Counsel filed a Motion for Summary Judgment and for transfer of this proceeding to the Board. On 31 March 1986 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company thereafter filed an opposition to the Motion for Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company's answer to the complaint denies it has refused to bargain with the Union. However, in its opposition to the General Counsel's Motion for Summary Judgment, the Respondent concedes that by letter dated 7 January 1986 it notified the Union that it had no obligation to bargain with the Union. In its opposition, however, it continues to attack the validity of the Union's certification. While admitting its refusal to furnish certain infor- mation to the Union, the Respondent answers that it is without sufficient information to form a belief as to whether the information requested is neces- sary for, and relevant to, the Union's performance of its function as the employees' exclusive bargain- ing representative. Further, in its opposition to the General Counsel's Motion for Summary Judgment, the Company contends that summary judgment is inappropriate inasmuch as there are disputed issues of material fact concerning the appropriateness of the certified unit and the propriety of the underly- ing election which entitles it to a hearing. In this respect, it maintains that the Board denied it the right to present evidence in the representation hearing on substantial and material unit issues. Ad- ditionally, it maintains that "new evidence" exists concerning the expansion of its facility which shows that there is a material question of fact whether the planned expansion of its facility is speculative. The General Counsel argues that all material issues concerning the Union's certification have been previously decided. We agree with the General Counsel. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered' and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding concerning these issues. By letter dated 10 December 1985, the Union re- quested the Company to furnish it with information concerning the unit employees and their terms and conditions of employment. The information re- quested by the Union included: (1) a list of all em- ployees in the unit including "their date of original employment, classification, social security number, present salary and grade"; (2) "a copy of the 1 We find no merit in the Respondent's contention that new evidence exists with respect to its planned expansion such that summary judgment is inappropriate A review of the Respondent's proposed testimony for which it claims a hearing is necessary reveals only an update on its ex- pansion efforts since the representation hearing and we conclude that the Company's assertions raise no issue warranting a hearing 280 NLRB No. 42 JEWISH HOSPITAL CENTER present hospital medical and life insurance cover- age"; (3) "a copy of the present pension coverage"; and (4) "a copy of the up-to-date personal benefits, and all other information, which may be helpful in i this matter." The complaint alleges that this infor- mation is necessary for and relevant to the Union's performance of its function as the exclusive collec- tive-bargaining representative of the unit employ- ees. The Respondent in its answer to the complaint admits the receipt of the information request but states that it is without information to form a belief as to whether the information requested is neces- sary for the Union's function as collective-bargain- ing representative of the unit. The Respondent admits that since 7 January 1986 it has failed and refused to furnish the Union with the requested in- formation. The information requested by the Union as it relates to unit employees is presumptively rel- evant to collective bargaining. Equitable Life Assur- ance Society, 266 NLRB 732 (1983). The Respond- ent has not attempted to rebut this presumption.2 Accordingly, we find that the Union is entitled to the information requested to the extent that it per- tains to unit employees. Therefore, we find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a corporation, with an office and place of business in Rivervale, New Jersey, is en- gaged in the business of providing health care serv- ices. During the 12 months preceding issuance of the complaint the Company, in the course and con- duct of its operations, derived gross revenues in excess of $250,000 and it purchased and received goods and supplies valued in excess of $50,000 di- rectly from suppliers located outside the State of New Jersey. We find the Company is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. 2 In its opposition to the General Counsel's motion, the Respondent did not address this issue II. ALLEGED UNFAIR LABOR PRACTICES 355 A. The Certification Following the election held 24 September 1985 the Union was certified 6 December 1985 as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time licensed practical nurses, nursing assistants, ward clerks, recreational assistants, business office clerical employees including bookkeepers, die- tary employees, laundry employees, house- keeping employees, and maintenance employ- ees, employed by the Respondent at its River- vale, New Jersey facility, but excluding all registered nurses and other professional em- ployees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 10 December 1985 the Union has request- ed the Company to bargain and to provide it with certain relevant information, and since 7 January 1986 the Company has refused to bargain or to supply the information. We find that these refusals constitute unlawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 7 January 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative in the appropriate unit, and to provide it with the requested relevant bargaining information, the Company 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 provide the Union with re- quested relevant bargaining information, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Jewish Hospital & Rehabilitation Center of N.J., Rivervale, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District 1199J, Na- tional Union of Hospital and Health Care Employ- ees, AFL-CIO, as the exclusive bargaining repre- sentative of the employees in the bargaining unit. (b) Refusing to provide the Union with informa- tion that is necessary and relevant to the Union's role as bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate 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 licensed practical nurses, nursing assistants, ward clerks, recreational assistants, business office clerical employees including bookkeepers, die- tary employees, laundry employees , house- keeping employees, and maintenance employ- ees, employed by the Respondent at its River- vale, New Jersey facility, but excluding all registered nurses and other professional em- ployees, guards and supervisors as defined in the Act. (b) Furnish the Union, pursuant to its 10 Decem- ber 1985 letter, with the information that is rele- vant and necessary to the Union's role as exclusive bargaining representative of the employees in the bargaining unit. (c) Post at its facility in Rivervale, New Jersey, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Re- gional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." upon receipt 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with District 1199J, National Union of Hospital and Health Care Employees, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit. WE WILL NOT refuse to provide the Union with information that is necessary and relevant to the Union's role as bargaining representative. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 bargaining unit: All full-time and regular part-time licensed practical nurses, nursing assistants, ward clerks, recreational assistants, business office clerical employees including bookkeepers, die- tary employees, laundry employees, house- keeping employees, and maintenance employ- ees, employed by the Respondent at its River- vale, New Jersey facility, but excluding all registered nurses and other professional em- ployees, guards and supervisors as defined in the Act. WE WILL furnish the Union, pursuant to its 10 December 1985 letter, with the information that is relevant and necessary to the Union's role as the exclusive bargaining representative of the employ- ees in the bargaining unit. JEWISH HOSPITAL & REHABILITA- TION CENTER OF N.J.