Staff Builders Services, Inc.

STAFF BUILDERS SERVICES Staff Builders Services, Inc. and Local 880, Service Employees International Union, AFL-CIO- CLC. Case 13-CA-27124 June 27, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union August 12, 1987, the General Counsel of the National Labor Relations Board issued a complaint September 11, 1987, against Staff Builders Services, the Respond- ent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on December 10, 1986, following a Board election in Case 13-RC- 16435, the Union was certified as the exclusive col- lective-bargaining representative of the Respond- ent's employees in the unit found appropriate. (Of- ficial notice is taken of the "record" in the repre- sentation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The com- plaint further alleges that since June 3 and August 31, 1987,1 the Company has refused to bargain with the Union, and since August 7, 1987, the Re- spondent has refused to provide the Union with re- quested information that is relevant and necessary for collective bargaining. On September 28, 1987, the Respondent filed its answer admitting in part and denying in part the allegations in the complaint and setting forth affirmative defenses. On November 2, 1987, the General Counsel filed a Motion for Summary Judgment. On November 9, 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 December 15, 1987, the Respondent filed a re- sponse. On January 28, 1988, the Respondent filed an amendment to its answer. 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 attacks the validity of the Union's certification and amended certification i Par IX(b) of the complaint alleges that the Respondent refused to recognize and bargain with the Union since August 31 , 1987, rather than August 7, 1987 In her Motion for Summary Judgment the General Counsel notes that the letter (attached to the motion) from the Respond- ent's attorney, R Clay Bennett, to the Union refusing to bargain and to supply information is dated August 7, 1987 Therefore, the General Counsel states the complaint should have alleged that the Respondent re- fused to bargain on August 7, 1987 The Respondent raises no issue con- cerning the authenticity of the letter 373 on the basis that the Board lacks jurisdiction over it and that the Union is not a labor organization. We agree with the General Counsel. The record, including the record in Case 13- RC-16435, reveals that a Decision and Direction of Election issued in Case 13-RC-16435 on May 10, 1984. On June 5, 1984, the Respondent timely filed a request for review of the Regional Director's De- cision and Direction of Election, on the grounds that the Regional Director erred in finding (1) that the Board has jurisdiction over the Respondent, (2) that the United Laborers Union Local 880 was a labor organization "within the meaning of Section 2(5) of the Act"; (3) that the Certified Nursing As- sistants (CNA) and Companions were not irregular or casual employees, (4) that the appropriate unit included all CNAs, and (5) that the unit was not limited to the Respondent's Chicago, Illinois facili- ty. On June 28, 1984, the Board granted the Re- spondent's request for review solely as to the Board's assertion of jurisdiction over the Respond- ent. On June 29, 1984, an election was held among the Respondent's unit employees and the ballots cast were impounded. On June 30, 1986, the Board issued an Order re- manding Case 13-RC-16435 to the Regional Direc- tor for further consideration of the jurisdictional issue consistent with Res-Care, Inc., 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986). The record in Case 13-RC-16435 was reopened for submission of additional evidence and filing of briefs by the parties. On September 8, 1986, the Acting Regional Director issued a Sup- plemental Decision and Order adopting and reaf- firming the May 10, 1984 decision and ordered that the ballots from the June 29, 1984 election be opened and that a tally of ballots be issued. On September 22, 1986, the Employer timely filed with the Board a request for review. On No- vember 19, 1986, the Board issued an order deny- ing the request for review. On December 2, 1986, the ballots cast August 17, 1984 in the election in Case 13-RC-16435 were opened and a tally of ballots issued. A majority of the valid ballots were cast for the Petitioner and on December 10, 1986, the Acting Regional Director issued a Certification of Representative.2 2 United Labor Unions Local 880 (ULU) filed the petition in Case 13- RC-16435 However, on August 17, 1985, ULU conducted an election among its dues-paying members to determine whether the members wished to affiliate with the Service Employees International Union, AFL-CIO-CLC (SEIU) A majority of valid ballots were cast for affili- ation, and the Union changed its name to Local 880, SEIU to reflect the affiliation On December 1, 1986, ULU filed with the Regional Director a motion to change the name of Petitioner (in Case 13-RC-16435) on all Continued 289 NLRB No. 49 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD By letter dated June 1, 1987, the Union request- ed the Respondent to bargain. In its June 3, 1987 letter to the Union, the Respondent refused to re cognize and bargain with the Union. On August 4, 1987, the Union sent the Respondent another letter in which it requested recognition and an opportuni- ty to bargain and also requested the Respondent to furnish it with the following information: 1. A list of all active full-time and regular part- time chorehousekeepers, homemakers and other bargaining unit personnel including their date of hire, length of service, rate of pay, hours of work, and any and all information re- lating to wages, hours and working conditions. 2. Copies of all work rules, agreements em- ployees are required to sign, management poli- cies and procedures, disciplinary or grievance procedures and any or all policies that are rel- ative to the workforce. By letter dated August 7, 1987, and since that date, the Respondent has refused to provide the Union with the requested information or to bargain with the Union.3 The Respondent contends in its affirmative de- fenses to the complaint and in its opposition to the Motion for Summary Judgment that its refusal to bargain and to provide the Union with the request- ed information is justified by the invalid certifica- tion of the Union based on the Regional Director's erroneous findings that the Board has jurisdiction over the Respondent and that the Union is a labor organization within the meaning of the Act and by the Acting Regional Director's erroneous amend- ing of the Union's certification by substituting a different union's name for that of the Union. In ad- dition, the Respondent raises for the first time af- firmative defenses that contend special circum- stances have arisen that affect the appropriateness formal papers to its current name On December 3, 1986, the Employer filed a response to the ULU's motion and on December 10, 1986, the Acting Regional Director issued an Order denying the motion. On March 31, 1987, the Union issued an Order denying the motion On March 31, 1987, the Union filed a petition in Case 13-AC-56 to amend its certification in Case 13-RC-16435. On May 22, 1987, the Acting Re- gional Director issued a Decision and Amendment of Certification in Case 13-AC-56 and the certification in Case 13-RC-16435 was amended to substitute "Local 880, Service Employees, International Union, AFL- CIO-CLC" as the name of the Union On June 4, 1987, the Respondent timely filed with the Board a request for review of that decision, which was denied by the Board on July 30, 1987 8 In its answer, the Respondent denies that the information requested is necessary for and relevant to the Union's performance of its function as exclusive representative of the unit employees It is well established, however, that the employees' wage and employment information sought by the Union is presumptively relevant for purposes of collective bar- gaining and must be furnished on request See, e.g, Mobay Chemical Corp., 233 NLRB 109 (1977) The Respondent has not attempted to rebut the relevance of the information requested by the Union We therefore find that no material issues of fact exist regarding the Respondent's refus- al to furnish the information sought by the Union of the bargaining unit and that previously unavail- able evidence would be grounds for the Board to decline jurisdiction over the Respondent. The Respondent alleges that since the hearing in Case 13-RC-16435 the duties of the contract repre- sentative have been fully merged into the coordina- tor and field supervisor positions and that these po- sitions now have greater supervisory authority, in- cluding authority to hire, discipline, discharge, and direct employees, and to evaluate employees using independent judgment. This additional authority with which the coordinator and field supervisors are now endowed, the Respondent contends, are special (or unusual) circumstances that justify its failure to bargain with the Union. Assuming ar- guendo that the coordinator and field supervisors would be supervisors under Section 2(11) of the Act and no longer unit employees, such an occur- rence would not constitute special or unusual cir- cumstances within the meaning of Ray Brooks v. NLRB, 348 U.S. 96, 98-104 (1954), which would relieve the Respondent of its obligation to bargain with the Union. The Respondent further alleges that since the hearing in the underlying representation case the Illinois Department on Aging (IDOA), a state agency and one of its three primary sources of income, has imposed a requirement that the Re- spondent expend a minimum of 73 percent of the IDOA reimbursement on direct service costs, i.e., wages and benefits paid to employees.4 The Re- spondent contends that by this action significant control over the labor relations formerly exercised by the Respondent has been transferred to the IDOA and thus the Board should decline jurisdic- tion. Assuming arguendo that the IDOA requires the Respondent to allocate a minimum of 73 percent of its IDOA reimbursement to employee wages and benefits, this would not deprive the Respondent of significant control over its labor relations. The Re- spondent would remain free to determine specific salary levels for all unit employees and could exceed the 73-percent requirement without IDOA restriction or approval. We fmd therefore that the existence of the IDOA requirement even consid- ered with the other factors present here would not deprive the Respondent of significant control over its labor relations and would not be grounds for us to decline jurisdiction. See Community Living, 285 NLRB 312 (1987).5 4 The alleged IDOA regulations would permit the Respondent to expend the remaining 27 percent at its discretion on administrative costs S Chairman Stephens notes that the Regional Director recognized in his Supplemental Decision and Order the pending status of the IDOA Continued STAFF BUILDERS SERVICES 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 Plate 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 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 Company, a corporation, provides health care services at its facility in Chicago, Illinois, where, during the 12 months ending December 31, 1986, a representative period, the Respondent, in the course of its business operations, derived gross revenues in excess of $500,000 and purchased and received at its Chicago facility goods and materials valued in excess of $10,000 from other enterprises, located within the State of Illinois, each of which other enterprises are engaged in interstate com- merce and meet the Board's jurisdictional stand- ards. We find that the Respondent is an employer 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. action at issue here, that the evidence proffered by the Respondent at this time was in fact "previously unavailable" within the meaning of Sec 102 65(exl) of the Board's Rules and Regulations, and that in his view this evidence involves a matter of statutory jurisdiction See his concur- ring and dissenting opinion in Res-Care, Inc, 280 NLRB 670, 675 and fn. 1 (1986) Thus, he would grant the Respondent's motion to reopen the record in the underlying representation proceeding He also notes that the Respondent contends that the previously unavailable evidence is con- clusive regarding the jurisdictional issue. On review of this evidence, and assuming its reliability, the Chairman finds, as before, no basis in the record to conclude that the Respondent is exempt from the Board's Juris- diction II. ALLEGED UNFAIR LABOR PRACTICES 375 A. The Certification Following the election held June 29, 1984, the Union was certified December 10, 1986, as the col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time homemak- ers, chorehousekeepers, companions, certified nurses aides, contract representatives, and field supervisors employed by the Employer; ex- cluding registered nurses, licensed practical nurses, casual employees, professional employ- ees, technical employees, office clerical em- ployees, Contracts Manager, Health Care Ad- ministrator, Home Health Care Coordinator, 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 June 1, 1987, the Union has requested the Respondent to bargain, and since August 4, 1987, the Union has requested the Respondent to bargain and to supply it with information necessary and relevant to its function as the exclusive bargaining representative of the unit employees, since June 3 and August 7, 1987, the Respondent has refused to bargain, and since August 7, 1987, the Respondent has refused to supply the Union with the requested information. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after June 3 and August 7, 1987, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, and to supply it with the requested information necessary for and relevant to its function as the exclusive representative of unit employees, the Respondent 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 shall also order the Respondent to provide the 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union the information it requested on August 4, 1987. 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). ORDER The National Labor Relations Board orders that the Respondent, Staff Builders Services, Inc., Chi- cago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 880, Service Employees International Union, AFL-CIO-CLC as the exclusive bargaining representative of the employees in the bargaining unit. (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 full-time and regular part-time homemak- ers, chorehousekeepers, companions, certified nurses aides, contract representatives, and field supervisors employed by the Employer; ex- cluding registered nurses, licensed practical nurses, casual employees, professional employ- ees, technical employees, office clerical em- ployees, Contracts Manager, Health Care Ad- ministrator, Home Health Care Coordinator, guards, and supervisors as defined in the Act. (b) On request provide the Union with necessary and relevant information, including a list of all active full-time and regular part-time unit employ- ees, their dates of hire, length of service, rate of pay, and hours of work, and copies of all work rules, agreements that employees are required to sign, management policies and procedures, discipli- nary or grievance procedures and any or all poli- cies that are relative to the unit employees. (b) Post at its facility in Chicago, Illinois, copies of the attached notice marked "Appendix."B Copies of the notice, on forms provided by the Re- gional Director for Region 13, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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." 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 Local 880, Service Employees International Union, AFL- CIO-CLC as the exclusive representative of the employees in the bargaining unit. WE WILL NOT refuse to provide the Union with requested information necessary for and relevant to the Union's performance of its duties as the exclu- sive bargaining representative of the unit employ- ees. 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 homemak- ers, chorehousekeepers, companions, certified nurses aides, contract representatives, and field supervisors employed by the Employer; ex- cluding registered nurses, licensed practical nurses, casual employees, professional employ- ees, technical employees, office clerical em- STAFF BUILDERS SERVICES 377 ployees, Contracts Manager, Health Care Ad- ministrator, Home Health Care Coordinator, guards, and supervisors as defined in the Act. WE WILL, on request, provide the Union with necessary and relevant information , including a list of all active full-time and regular part-time unit em- ployees, their dates of hire, length of service, rates of pay, and hours of work ; and copies of all work rules, agreements that employees are required to sign, management policies and procedures, discipli- nary or grievance procedures, and any or all poli- cies that are relevant to the unit employees. STAFF BUILDERS SERVICES, INC.