Lake Holiday Manor

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lake Holiday Associates, Inc. d/b/a Lake Holiday Manor and 1199 Indiana, National Union of Hospital & Health Care Employees, AFL-CIO. Case 25-CA-19429 July 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 30, 1988, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union's re- quest to bargain and to furnish information follow- ing the Union's certification in Case 25-RC-8392.1 (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).) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint. On December 13, 1988, the General Counsel filed a motion to strike portions of the Respond- ent's answer and a Motion for Summary Judgment. On December 19, 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 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 In its answer and response, the Respondent admits its refusal to bargain and that it has refused to furnish information requested by the Union, but attacks the validity of the Union's certification on the basis of its objections to the election in the rep- resentation proceeding.2 All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding . The Respondent does not offer to adduce at a hearing any newly discov- ' Subsequently, the Regional Director filed an amended complaint on October 3, 1988, and a second amended complaint on November 22, 1988, to which the Respondent filed timely answers. 2 The Respondent has filed a motion to include record or to stoke the General Counsel's Motion for Summary Judgment in which it contends that the denial of its request to obtain the tapes of the underlying repre- sentation hearing has prevented it from supporting its claim of the hear- ing officer's antagonistic conduct towards its witnesses . Although the Re- spondent's request for the tapes is being raised before the Board for the first time, its exceptions to the hearing officer's rulings and findings were raised before the Board in the representation proceeding. The Board's de- cision in the representation proceeding included a complete examination of the entire record and found the Respondent 's exceptions to be without merit. Accordingly, the motion is denied. ered and previously unavailable evidence , nor does it allege any special circumstances that would re- quire the Board to reexamine the decision made in the representation proceeding . We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair labor practice proceeding . See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac- cordingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent has maintained its principal office and place of business at DeMotte, Indiana, and has been, at all times material, engaged at that location in providing residential health care and re- lated services. During the 12-month period ending December 31, 1987, the Respondent, in the course and conduct of its business operations , derived at its DeMotte, Indiana facility revenues in excess of $50,000 from medicaid payments from the U.S. Government and derived gross annual revenues in excess of $1 million. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care institution within the meaning of Sec- tion 2(14) of the Act. We further find 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 on December 3, 1986, the Union was certified on April 13, 1988, as the collective-bargaining representative of the em- ployees in the following appropriate unit: All service and maintenance employees of the Employer at its DeMotte, Indiana facility; BUT EXCLUDING all office clerical employ- ees, all LPNs, all professional employees, and all guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. 8 In view of our decision on Motion for Summary Judgment, we find it unnecessary to rule on the General Counsel's motion to strike portions of the Respondent's answer to complaint. 295 NLRB No. 108 LAKE HOLIDAY MANOR 993 B. Refusals to Bargain Since April 19, 1988, the Union has requested the Respondent to bargain and to furnish wage and employment information, and since April 19, 1988, the Respondent has refused. We find that these re- fusals constitute unlawful refusals to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on or after April 19, 1988, to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit and to furnish the Union requested informa- tion, 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). 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 of the Employer at its DeMotte, Indiana facility; BUT EXCLUDING all office clerical employ- ees, all LPNs, all professional employees and all guards and 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 DeMotte, Indiana, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 25, 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. 4 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." ORDER The National Labor Relations Board orders that the Respondent, Lake Holiday Associates, Inc. d/b/a Lake Holiday Manor, DeMotte, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with 1199 Indiana, Na- tional Union of Hospital & Health Care Employ- ees, AFL-CIO as the exclusive collective-bargain- ing representative of the employees in the bargain- ing unit, and refusing to furnish the Union informa- tion that is relevant and necessary to its role as the 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. 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 Indi- ana, National Union of Hospital and Health Care Employees, 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 994 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 service and maintenance employees of the Employer at its DeMotte, Indiana facility; but excluding all office clerical employees, all LPNs, all professional employees and all guards and 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. LAKE HOLIDAY ASSOCIATES, INC. D/B/A LAKE HOLIDAY MANOR