Superior Home And Health Care, Inc.

SUPERIOR HOME & HEALTH CARE Superior Home and Health Care , Inc. and Service Employees International Union, Local 880, AFL-CIO, CLC. Case 13-CA-27017 11 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT Upon a charge filed by the Union 1 July 1987, the Acting Regional Director for Region 13 of the National Labor Relations Board issued a complaint 7 August 1987 against the Company, the Respond- ent, alleging that it has violated Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act. The complaint alleges that on 16 January 1987, the Union was certified as the exclusive collective- bargaining representative of the Company'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); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that the Respondent has refused to bar- gain in good faith with the Union since 24 June 1987 by refusing to offer counterproposals to the Union, and since 15 July 1987, by refusing to meet with the Union because unfair labor practice charges had been filed against the Respondent. Ad- ditionally, the complaint alleges that since about 2 June 1987, the Union, by letter, has requested the Respondent to furnish the Union with information necessary for, and relevant to, the Union's perform- ance of its function as the exclusive collective-bar- gaining representative of unit employees and that since about 10 June 1987 the Respondent has failed and refused to furnish the Union the requested in- formation. On 1 September 1987 an agent of Region 13 of the Board informed the Respondent that no answer to the complaint had yet been filed as required by Sections 102.20 and 102.21 of the Board's Rules and Regulations, and that an answer should be filed on or before 9 September 1987. A copy of Sections 102 20 and 102.21 of the Board's Rules and Regula- tions was enclosed with the 1 September 1987 letter. On 9 September 1987 the Respondent filed an "Answer to Complaint and Notice of Hearing." Contrary to the requirements of Section, 102.20 of the Board's Rules and Regulations, the answer did not specifically admit, deny, or explain any of the facts alleged in the complaint, and it did not state that the Respondent was without knowledge relat- ing to any of the facts alleged in the complaint. A Board agent, by letter dated 10 September 1987, in- 45 formed the Respondent that the answer did not meet the requirements of the Board's Rules and Regulations. The letter also stated that an amended answer should be filed on or before 17 September 1987. The Respondent, by letter, informed a Board agent that it would not submit an amended answer. On 21 September 1987 the General Counsel filed a motion to transfer proceeding to the Board and a Motion for Summary Judgment. On 25 September 1987 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On 9 October 1987 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 Section 102.20 of the Board's Rules and Regula- tions provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 14 days from service of the complaint, unless good cause is shown. The complaint states that unless an answer is filed within 14 days of service, "all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board." As outlined above, on 1 September 1987 a Board agent notified the Respondent that no answer to the complaint had yet been filed as required by Sections 102.20 and 102.21 of the Board's Rules and Regulations and extended the Respondent's time for filing until 17 September 1987. The answer the Respondent submitted did not specifically admit, deny, or explain any of the facts alleged in the complaint as required by the Board's Rules and Regulations. Instead, it narrated in six numbered sections the Respondent's opinions. For example, it stated reasons for not furnishing the Union with the requested information, claiming that "this infor- mation was not necessary, since the Union, on No- vember 3, 1986, sent me a letter stipulating what their economic proposals were," and that the Union refused to give the Respondent requested in- formation regarding, inter alga, the Respondent's employees who were active union members and the names of all the stewards who were employed by the Respondent. The Respondent claimed that the Union "has jeopardized the jobs of the employ- ees" by asking them to provide information to the Union prohibited by the Illinois Administrative Code and the Respondent's rules. The "answer" ' The Respondent is not currently represented by counsel in the instant proceeding but was represented in the underlying representation proceed- ing 287 NLRB No. 6 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD then describes why the Respondent did not ap- prove the union proposals on 24 June 1987, de- scribing the union-security clause as "deplorable," and the "Dignity and Respect" clause as a "total farce." Finally, the answer describes an incident which occurred on 29 August 1987 when the Re- spondent's president, Jerry Solway, claims that the union organizers "marched" into his neighborhood with "a group of about twenty-five persons, shout- ing slogans and verbal insinuations" about him. For the reasons stated, the Respondent requested that the Board dismiss the complaint. After the Respondent was informed that this answer did not meet the requirements of the Board's Rules and Regulations and was told by a Board agent that an amended answer should be filed, the Respondent refused to amend its answer. Respondent's answer is improper under Section 102.20 of the Board's Rules and Regulations be- cause it does not specifically admit, deny, or ex- plain each of the facts alleged in the complaint. Therefore, the Respondent has not filed an answer acceptable under the Board's Rules and Regula- tions within 14 days from service of the complaint, or within the extended time afforded it by the Board agent. The Respondent also failed to file an adequate response to the Board's Show Cause Order. The response submitted by the Respondent is a narra- tive of opinions regarding alleged union- and Board-related misconduct,2 fails to explain ade- quately its failure to file a proper answer to the complaint, and fails to establish any sound reason why the Motion for Summary Judgment should not be granted. In view of the above, we find the Respondent has not shown good cause for its fail- ure to file an acceptable answer and, in accordance with the Rules set forth above, the allegations of the complaint are deemed to be admitted to be true. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following 2 In its response, the Respondent 's president , Solway , summarizes as- serted statements made by him to counsel for the General Counsel on 10 September 1987, in relation to the adequacy of the answer dated 9 Sep- tember 1987 He asserts that he told counsel for the General Counsel that complaint allegations 1, II, III, IV, V, VI, and VII were "trivial inserts that had time-and-time again been established as correct ," and that the "answers to the alleged facts, VIII, X , XI, and XII were emphatically denied by me and I answered and explained the reasons why, in the best way I could" (emphasis in original ) Thereafter, the Respondent specifi- cally refused to amend the answer to the complaint Additionally, the Re- spondent prays that the Board use "common sense" as necessary guides for "fair and just judgments," because the law can be misinterpreted and Rules and Regulations can be "twisted " We find that this is an inad- equate and irrelevant reply, particularly when the Respondent refused to amend its inadequate initial answer when provided the opportunity FINDINGS OF FACT 1. JURISDICTION The Company, an Illinois corporation, is en- gaged in the business of providing services for senior citizens in their homes. During the last cal- endar or fiscal year, a representative period, the Respondent, in the course and conduct of its busi- ness operations, derived gross revenues in excess of $500,000. During this period of time, the Respond- ent, in the course and conduct of business oper- ations, purchased and received at its Chicago, Illi- nois facility products, goods, and materials valued in excess of $15,000 from other enterprises located within the State of Illinois, each of which other en- terprises had received the products, goods, and ma- terials directly from points outside the State of Illi- nois. We find that the Company is an employer en- gaged 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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On 16 January 1987 the Union was certified as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time chore/- housekeepers employed by the Employer who receive their work assignments through the Employer's office currently located at 202 South State Street, Chicago, Illinois, but ex- cluding clerical employees, supervisors and guards as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusals to Bargain Since 24 June 1987, the Respondent had refused to bargain in good faith with the Union. Since 10 June 1987 the Respondent has refused to furnish the Union with requested information that is neces- sary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of the employees.3 We find that 3 The Union, by letter, about 2 June 1987, requested the Respondent to furnish it with the following information (a) The rates of pay, schedule of benefits, and number of hours as- signed to each employee in the bargaining unit (b) A current list of employees with names, addresses, and zip codes (c) A copy of any written information given to employees when they are hired Continued SUPERIOR HOME & HEALTH CARE these refusals constitute unlawful refusals to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing since 24 June 1987, and at all times thereafter, to bargain collectively with the Union as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, and by refusing since about 10 June 1987 to furnish the Union with information that is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the employees in the appropriate unit, the Respondent has engaged in and is engag- ing 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 engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondent to bargain collec- tively with the Union as the exclusive representa- tive of all employees in the appropriate unit and, if an understanding is reached, to embody the under- standing 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 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). We shall also order the Respondent to furnish the Union with the following information: the rates of pay, schedule of benefits, and number of hours assigned to each employee in the bargaining unit; a current list of employees with names, addresses, and zip codes; a copy of any written information given to employees when they are hired; a copy of work rules that affect the bargaining unit; and any other information dealing with employee wages, hours, and working conditions.' (d) A copy of work rules that affect the bargaining unit (e) Any other information dealing with employee wages, hours, and working conditions The General Counsel's request for a visitatorial clause is denied, as such a provision is unnecessary in the circumstances of this case 47 ORDER The National Labor Relations Board orders that the Respondent, Superior Home and Health Care, Inc., Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union as the ex- clusive bargaining representative of the employees in the bargaining unit. (b) Refusing to furnish the Union with informa- tion which is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the employ- ees in the appropriate unit. (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 all the employees in the following appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. All full-time and regular part-time chore/- housekeepers employed by the Employer who receive their work assignments through the Employer's office currently located at 202 South State Street, Chicago, Illinois, but ex- cluding clerical employees, supervisors and guards as defined in the Act. (b) On request, furnish the Union with informa- tion relating to the rates of pay, schedule of bene- fits, and number of hours assigned to each employ- ee in the bargaining unit, a current list of employ- ees with names, addresses, and zip codes; a copy of any written information given to employees when they are hired; a copy of work rules that affect the bargaining unit; and any other information dealing with employee wages, hours, and working condi- tions, which information is necessary for, and rele- vant to, the Union's performance of its function as the exclusive collective-bargaining representative of the employees in the appropriate unit. (c) Post at its facility at 202 South State Street, Chicago, Illinois, copies of the attached notice marked "Appendix."5 Copies of the notice, on 5 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 " 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees 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 Service Employees International Union, Local 880, AFL- CIO, CLC as the exclusive representative of the employees in the bargaining unit. 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 NOT refuse to furnish the Union with information which is necessary for, and relevant to, the Union's performance of its functions as the ex- clusive collective-bargaining representative of the employees in the appropriate unit. WE WILL, on request, furnish the Union with in- formation relating to the rates of pay , schedule of benefits, and number of hours assigned to each em- ployee in the bargaining unit ; a current list of em- ployees with names, addresses , and zip codes; a copy of any written information given to employ- ees when they are hired ; a copy of work rules that affect the bargaining unit ; and any other informa- tion dealing with employee wages, hours, and working conditions, which information is necessary for, and relevant to , the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the employee in the appropriate unit. 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 chore/- housekeepers employed by the Employer who receive their work assignments through the Employer's office currently located at 202 South State Street, Chicago, Illinois, but ex- cluding clerical employees, supervisors and guards as defined in the Act. SUPERIOR HOME AND HEALTH CARE, INC.