Resthaven Nursing Home

RESTHAVEN NURSING HOME Norman Huggins, Receiver for Rest Haven Corpora- tion, d/b/a Resthaven Nursing Home and Rest Haven Corporation d/b/a Resthaven Nursing Home and New England Health Care Employ ees Union, District 1199, NUHHCE, AFL- CIO Cases 1-CA-25533 and 1-CA-25633 April 10, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On July 21, 1988, the General Counsel of the National Labor Relations Board issued a complaint in Case 1-CA-25533 alleging that the Respondents have violated Section 8(a)(5) and (1) of the Nation- al Labor Relations Act by refusing the Union's re quest to bargain and to provide information follow mg the Union's certification in Case 1-RC-18941 (Official notice is taken of the "record" in the rep- resentation proceeding as defined in the Board's Rules and Regulations, Secs 102 68 and 102 69(g), Frontier Hotel, 265 NLRB 343 (1982)) On August 19, 1988, the General Counsel issued an amended consolidated complaint in Cases 1-CA-25533 and 1-CA-25633, alleging that the Respondents have violated Section 8(a)(5) and (1) by refusing to bar gain and to supply information and by making uni lateral changes in wages, hours, and other terms and conditions of employment without prior notice to or bargaining with the Union as the exclusive representative of employees in the unit The Re spondents filed an answer admitting in part and de- nying in part the allegations in the amended con- solidated complaint,' and raising certain affirmative defenses On October 6, 1988, the General Counsel filed a Motion for Summary Judgment regarding the al leged refusals to bargain and to supply information, but not the alleged unilateral changes On October 7, 1988, 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 Respondents filed a response t In answer to the allegations contained in pars 1 2 4 5 9 11-13 15 and 23 of the complaint the Respondents stated that they neither admit ted nor denied the allegations and called on the Union and the Board to prove them Sec 102 20 of the Board s Rules and Regulations however provides that All allegations in the complaint if no answer is filed or any allega tion in the complaint not specifically denied or explained in an answer filed unless the respondent shall state in the answer that he is without knowledge shall be deemed to be admitted to be true and shall be so found by the Board unless good cause to the contrary is shown In view of the Respondents failure to deny specifically the above alle gations of the complaint we find that the Respondents have admitted those allegations and that they are true because no good cause to the contrary has been shown 617 The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Ruling on Motion for Summary Judgment In their answer the Respondents admit their re- fusal to bargain and to furnish information that the Union has requested However, they attack the va- lidity of the certification on the basis of their objec- tions to the Union's conduct during the election campaign 2 In addition, the Respondents deny that the information requested by the Union is relevant and necessary to the performance of its function as the representative of employees in the unit The Respondents further assert that Norman Huggins, as receiver for Rest Haven, is not a proper re spondent in this proceeding The Respondents also allege that this action was untimely filed All representation issues raised by the Respond- ents were or could have been litigated in the prior representation proceeding The Respondents do not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor do they allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondents have not raised any representation issue that is properly litigable in this unfair labor practice proceeding See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941) The Respondents deny the relevance and neces- sity of the information sought by the Union There is no merit to that contention The information re quested consists of the names, addresses, telephone numbers, and dates of hire of unit employees, rates of pay, starting rates, rate progression, and pay grades, shifts, hours worked per week, job descrip- tions, descriptions and costs of health and pension benefits provided to employees, holidays, sick leave, and vacation rights enjoyed by employees, a copy of the employee handbook, and copies of any policy statements that could affect conditions of employment Such information, as it relates to unit employees, is presumptively relevant to collective bargaining Hawaiian Flour Mill, 274 NLRB 1108, 1109 (1985), enfd 792 F 2d 1459 (9th Cir 1986), Fairfield Daily Republic, 275 NLRB 7, 8-9 (1985), enfd mem 782 F 2d 1052 (9th Cir 1986) The Re- spondents have not rebutted this presumption or, indeed, submitted any support for their assertion that the information requested is not relevant and necessary For these reasons, we find that no mate 2 Although the Respondents do not allude to the Union s conduct in either their answer to the consolidated complaint or in their opposition to the Motion for Summary Judgment they did raise the issue in a letter to counsel for the General Counsel dated May 13 1988 293 NLRB No 71 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD real issues of fact exist with regard to the Respond ents' failure to furnish the information sought by the Union, and that the Union is entitled to the in- formation requested to the extent that it pertains to unit employees Neither is there merit in the Respondents' con tention that this proceeding is time-barred under Section 10(b) of the Act 3 The Union made its first request for bargaining and for information by letter dated December 8, 1987, it made renewed requests for bargaining and for the same information by let- ters dated March 28 and April 14, 1988, and made yet another request for bargaining by letter dated June 9, 1988 The original charge in Case 1-CA- 25533 was filed on May 25, 1988, and was served on the Respondents on June 1, a date within 6 months of the Union's first request 4 An amended charge was filed on June 27 and served on June 28 5 A second amended charge was filed and served on July 6, and a third amended charge was filed the next day and served on July 11 6 Thus, even the Union's third amended charge was served within 6 months of its March, April, and June re quests, each of which was ignored by the Respond- ents Each of the Respondents' failures to respond affirmatively to the Union's requests for bargaining and for information on those occasions constituted a separate and independent violation of Section 8(a)(5) within the 10(b) period Chesapeake & Poto- mac Telephone Co, 259 NLRB 225, 230 (1981), enfd 687 F 2d 633 (2d Cir 1982), Ocean Systems, 227 NLRB 1593, 1594 (1977), enfd 571 F 2d 859 (5th Cir 1978) 7 Consequently, this action is not untimely 8 Sec 10(b) provides that no complaint may issue based on an unfair labor practice occurring more than 6 months prior to the filing of the charge and its service on the charged party * The original charge named only Norman Huggins as the employer However it specifically alleged a refusal to bargain re Resthaven Nurs ing Home Under the circumstances we find that Rest Haven was on notice by June 1 that it had been charged with a violation of the Act s The amended charge named as the employer Norman Huggins Re ceiver for Rest Haven Corporation d/b/a Resthaven Nursing Home The amended charge thus indicated even more clearly that Rest Haven had been charged with a violation 6 Each of the latter two charges named as the employer Norman Huggins Receiver for Rest Haven Corporation and Rest Haven Corp d/b/a Resthaven Nursing Home Rest Haven thus was explicitly charged with a violation by July 11 The second amended charge alleged unlawful unilateral changes in wages benefits and working conditions of unit employees but not a re fusal to bargain and supply information The third amended charge again alleged refusals to bargain and furnish information The allegations con tamed in the second amended charge became the subject of the charge in Case I-CA-25633 the General Counsel has not moved for summary judgment on those allegations of the consolidated complaint (specifically pars 17-21) 7 In any event a request for bargaining is considered to be continuing at least during the certification year and the failure to respond affirma tively to such a continuing request gives rise to a continuing violation of Sec 8(a)(5) Southern Lumber Co 279 NLRB 187 fn 1 (1986) Dardanell Enterprises 250 NLRB 377 379 (1980) enfd 676 F 2d 687 (3d Cir 1982) Thus a continuing violation stemming from the Respondents refusal to Accordingly, we grant the Motion for Summary Judgment 8 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, Rest Haven Corporation d/b/a Resthaven Nursing Home, a corporation, is en gaged in the operation of a nursing home at its fa- cility in Boston, Massachusetts During the year ending December 31, 1987, the Respondent, in the course and conduct of its business operations just described, derived gross revenues in excess of $100,000, and purchased and received at that facili ty products, goods, and materials valued in excess of $50,000 directly from points outside Massachu setts 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 II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held October 27, 1987, the Union was certified on December 3, 1987, as the collective-bargaining representative of the em- ployees in the following appropriate unit All technical employees employed by the Em- ployer at its Roxbury, Massachusetts location, but excluding all other employees, guards, the Director of Nursing, the Assistant Director of Nursing, Nurse Supervisors, Head Nurses and other 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 about December 8, 1987, the Union has re- quested the Respondent to bargain and to furnish bargain arose no later than January 11 1988 the date 6 months poor to the service of the Union s third amended charge 8 In the representation proceeding only Rest Haven Corporation was named as the Employer Thus the bargaining obligation that arose on the Union s certification and subsequent request for bargaining was the obli gation of Rest Haven not of Respondent Norman Huggins the receiver for Rest Haven Huggins had no such obligation except insofar as he was an agent of Rest Haven Our Order therefore shall be issued only against Rest Haven but it will bind Huggins if he is one of Rest Haven s officers or agents Because the General Counsel has not moved for summary judgement on the allegations in Case 1-CA-25633 (concerning the Respondents al leged unilateral changes in terms and conditions of employment of unit employees) we shall sever that case and remand it to the Regional Di rector for further proceedings RESTHAVEN NURSING HOME 619 information, and, since about December 8, 1987, and at all times thereafter, the Respondent has re- fused We find that these refusals constitute unlaw- ful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after December 8, 1987, to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit and to furnish the Union requested information, 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 also shall order the Respondent to furnish the Union the information requested 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, Rest Haven Corporation d/b/a Resthaven Nursing Home, Boston, Massachusetts, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with New England Health Care Employees Union, District 1199, NUHHCE, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the ex- clusive 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 technical employees employed by the Em- ployer at its Roxbury, Massachusetts location, but excluding all other employees, guards, the Director of Nursing, the Assistant Director of Nursing, Nurse Supervisors, Head Nurses and other supervisors as defined in the Act (b) On request, furnish the Union information that is relevant and necessary to its role as the ex- clusive bargaining representative of the unit em- ployees (c) Post at its facility in Boston, Massachusetts, copies of the attached notice marked `Appendix "9 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reason able 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 IT IS FURTHER ORDERED that Case 1-CA-25633 is severed from Case 1-CA-25533 and remanded to the Regional Director for further proceedings 9 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 New Eng- land Health Care Employees Union, District 1199, NUHHCE, AFL-CIO as the exclusive representa- tive of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union informa- tion that is relevant and necessary to its role as the 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 technical employees employed by the Em- ployer at its Roxbury, Massachusetts location, but excluding all other employees, guards, the Director of Nursing, the Assistant Director of Nursing, Nurse Supervisors, Head Nurses and other supervisors as defined in the Act WE WILL, on request, furnish the Union informa tion that is relevant and necessary to its role as the exclusive bargaining representative of the unit em ployees REST HAVEN CORPORATION D/B/A RESTHAVEN NURSING HOME