Mattie C. Hall Health Care Center

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mattie C. Hall Health Care Center and 1199, Na- tional Union of Hospital and Health Care Em- ployees, AFL-CIO. Case 11-CA-11952 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon a charge filed by the Union 14 March 1986, the General Counsel of the National Labor Relations Board issued a complaint 28 March 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 22 January 1986, following a Board election in Case 11-RC-5296, the Union was certified as the exclusive collective- bargaining representative of the Respondent's em- ployees in the unit found appropriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 4 March 1986 the Company has refused to bargain with the Union and has re- fused to provide the Union with requested informa- tion necessary and relevant to its duties as bargain- ing representative. On 7 April 1986 the Respondent filed its answer admitting in part and denying in part the allegations in the complaint. On 21 April 1986 the General Counsel filed a Motion to Strike Portions of Respondent's answer to complaint and Motion for Summary Judgment,' with exhibits attached. On 23 April 1986 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 delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent's answer to the complaint and response to the Notice to Show Cause admit cer- tain factual allegations of the complaint but deny r The General Counsel claims that the Respondent's denial of the com- plaint allegations dealing with the Union's certification "is a sham and frivolous" and moves to strike such denial We find that, although the answer does not present a meritorious defense to the allegations of the complaint, no portion of the answer or any of its paragraphs should be struck. In our judgment, the Respondent's pleading can be viewed as an endeavor by the Respondent to preserve a position, albeit, in our view, an erroneous one See Rod-Ric Corp., 171 NLRB 922 (1968) The motion to strike is therefore denied that the Respondent has committed the unfair labor practices alleged. The Respondent admits that it has refused to recognize and bargain with the Union, but denies that the Union is the exclusive representative of the unit employees. The Respond- ent also admits that it has refused to furnish the in- formation requested by the Union. The Respondent contends that it has no obligation to bargain with the Union, claiming that the Board's certification of the Union in Case 11-RC-5296 was improper be- cause the election should have been set aside based on its objections to the election in the representa- tion proceeding. The Respondent asserts its refusal to bargain is the only way it can contest the Union's alleged improper certification. The General Counsel argues that the Respondent is attempting to relitigate those issues rejected by the Board in the representation proceeding, and be- cause there exists no newly discovered or previous- ly unavailable evidence or special circumstances warranting relitigation the Motion for Summary Judgment should be granted. We agree. The record, including the record in Case 11- RC-5296, discloses that pursuant to a Stipulated Election Agreement, an election was conducted 7 June 1985. The revised tally of ballots showed 37 for and 35 against the Union. There were no chal- lenged ballots. The Respondent filed timely objec- tions to the election. After an investigation con- cerning these objections, the Regional Director issued his report recommending that the objections be overruled. The Respondent filed exceptions to the Regional Director's recommendations. The Re- spondent contended, inter alia, that the Board agent who conducted the election engaged in im- proper conduct during the course of the election and that the Union engaged in preelection conduct sufficiently serious to warrant setting aside the election. On 22 January 1986 the Board adopted the Regional Director's recommendations and cer- tified the Union as the exclusive representative of the Respondent's employees. About 10 February and 3 March 1986, and con- tinuing to date, the Union has requested the Re- spondent to bargain with it and to provide it with certain necessary and relevant bargaining informa- tion. Since about 4 March 1986, the Respondent has refused to bargain with the Union or to pro- vide it with the information requested. We agree with the General Counsel that the Re- spondent is attempting to relitigate the identical issues, which were considered by the Board in the prior proceeding and which were found to be without merit. It is well settled that in the absence of newly discovered and previously unavailable evidence or special circumstances, a respondent in 280 NLRB No. 129 MATTIE C. HALL HEALTH CARE CENTER 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 pro- ceeding. See Pittsburgh Glass Co. x 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 Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that the Re- spondent has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a South Carolina corporation, is engaged in the operation of a nursing home at its facility in Aiken, South Carolina, where, during the 12 months preceding the issuance of the complaint, a representative period, it derived gross revenues in the course and conduct of its business operations in excess of $250,000 and received products valued in excess of $50,000 directly from points outside the State of South Carolina. We find that the Respond- ent is an employer engaged in commerce within the meaning of Section 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. H. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 7 June 1985 the Union was certified 22 January 1986 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All service and maintenance employees em- ployed by the Respondent at is facility located at 830 Laurens Street, Aiken, South Carolina; excluding all office clerical employees, secre- taries, bookkeepers, licensed practical nurses, registered nurses, professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. 1115 B. Refusal to Bargain Since about 10 February and 3 March 1986, the Union has requested the Respondent to bargain, and since 4 March 1986 the Respondent has re- fused. Also, since about 10 February 1986, the Union has requested the Respondent provide the following information : a list of all current employ- ees and their current hourly rates and current se- niority dates or dates of hire, if different; a copy of the employees' normal insurance plan; any retire- ment or pension plan; and/or supporting material. Since 4 March 1986 the Respondent has refused to provide the requested information, which we find to be necessary and relevant to the Union's per- formance of its function as the exclusive bargaining representative of the unit employees . We find that these refusals constitute an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 4 March 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, and by refusing to furnish the Union the requested information, the Respondent has en- gaged 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, and to provide the Union information necessary for and relevant to the Union's performance of its function as the exclusive representative of the unit employees. 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 on 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, Mattie C. Hall Health Care 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Center, Aiken, South Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with 1199, National Union of Hospital and Health Care Employees, AFL-CIO as the exclusive bargaining representa- tive of the employees in the bargaining unit, and refusing to provide the Union with the requested information necessary for and relevant to its role as exclusive bargaining representative of the unit em- ployees. (b) 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 service and maintenance employees em- ployed by the Respondent at its facility locat- ed at 830 Laurens Street, Aiken, South Caroli- na; excluding all office clerical employees, sec- retaries, bookkeepers, licensed practical nurses, registered nurses, professional employees, guards and supervisors as defined in the Act. (b) Provide the Union with the information ini- tially requested 10 February 1986, which s neces- sary for and relevant to its role as exclusive bar- gaining representative of the unit employees. (c) Post at its facility in Aiken, South Carolina, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately 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 1199, Na- tional Union of Hospital and Health Care Employ- ees, AFL-CIO as the exclusive representative of the employees in the bargaining unit and WE WILL NOT refuse to provide the Union with requested in- formation necessary for and relevant to its role as 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 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 service and maintenance employees em- ployed by us at our facility located at 830 Laurens Street, Aiken, South Carolina; exclud- ing all office clerical employees, secretaries, bookkeepers, licensed practical nurses, regis- tered nurses, professional employees, guards and supervisors as defined in the Act. WE WILL provide the Union with the following relevant requested bargaining information: a list of all current employees and their current hourly rates and current seniority dates or dates or hire, if different; a copy of the employees' normal insur- ance plan; any retirement or pension plan; and/or supporting material. MATTIE C. HALL HEALTH CARE CENTER 2 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 "