Sunrise Health & Rehabilitation Center

351 NLRB No. 95 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Richmond Health Care d/b/a Sunrise Health and Re- habilitation Center and Service Employees In- ternational Union, Florida Healthcare Union, Local 1999. Case 12–CA–25504 December 31, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge and an amended charge filed on July 30 and October 3, 2007, respectively, the General Counsel issued the complaint on October 26, 2007, alleg- ing that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to provide information following the Union’s certifi- cation in Cases 12–RC–8064 and 12–RC–8065. (Offi- cial notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regula- tions, Sec. 102.68 and 102.69(b); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, alleging affirmative defenses, admitting in part and deny- ing in part the allegations in the complaint. On November 20, 2007, the General Counsel filed a Motion for Summary Judgment. On November 21, 2007, the Board issued an order transferring the proceed- ing 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 delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits that it has refused to bargain with the Union and that it has refused to furnish informa- tion that is relevant and necessary to the Union’s role as bargaining representative. The Respondent contends, however, that the Board’s certification of the Union was improper, and that it therefore has no obligation to bar- gain with the Union or to provide the requested informa- tion. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We also find that there are no factual issues warranting a hearing with respect to the Union’s request for infor- mation. The complaint alleges, and the Respondent ad- mits, that by letters dated May 1 and June 7, 2007, the Union requested the following information: 1. A current list of employees with names, dates of hires, rates of pay, job classification, department, last known address, and phone number; 2. A copy of all current company personnel poli- cies and procedures pertaining to the bargaining unit; 3. A copy of all fringe benefit plans, including pension, profit sharing, severance, stock incentive, health insurance, apprenticeship, training, legal ser- vices, child care or other plans which relate to em- ployees, and copies of the applicable summary plan descriptions; 4. Job descriptions; 5. Copies of any wage and salary plans; 6. Copies of OSHA 200 logs for the last three years; 7. The Cost Reports filed with AHCA for the last three years; and 8. Any and all agreements with subcontractors that relate to bargaining unit wages, benefits and/or working conditions. It is well established that the foregoing type of infor- mation sought by the Union is presumptively relevant for purposes of collective bargaining and must be furnished on request. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802 (2003). The Respondent has not asserted any basis for rebutting the presumptive relevance of the information. Rather, the Respondent raises as an af- firmative defense its contention, rejected above, that the Union was improperly certified. We therefore find that the Respondent unlawfully refused to furnish the infor- mation sought by the Union. Accordingly, we grant the Motion for Summary Judg- ment, and will order the Respondent to bargain with the Union and to furnish the Union the information re- quested. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Georgia cor- poration licensed to do business in the State of Florida, with an office and place of business located at 4800 Nob DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Hill Road, Sunrise, Florida, has been engaged in the op- eration of an extended care nursing home. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $100,000. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, purchased and received at its Sunrise, Florida facility goods valued in excess of $10,000 directly from points outside the State of Florida. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Service Employees International Union, Florida Healthcare Union, Local 1999 (the Un- ion), is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following representation elections held on May 9, 1997, in Case 12–RC–8064 (Service unit) and Case 12–RC– 8065 (LPN unit), the Board certified 1115 Nursing Home, Hospital and Service Employees Union-Florida, a Division of District 1115 (District 1115) on July 22, 1997, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate units: The Service Unit All full-time and regular part-time certified nursing as- sistants, dietary employees, cooks, maintenance em- ployees, medical records employees, unit secretaries, activities employees, social services assistants and cen- tral supply employees employed by Respondent at its Sunrise, Florida facility; excluding all other employees, housekeeping employees, licensed practical nurses, of- fice clerical employees, occupational therapists, regis- tered nurses, physical therapists, guards and supervisors as defined in the Act. The LPN Unit All full-time and regular part-time licensed practical nurse (LPN) charge nurses employed by Respondent at its Sunrise, Florida facility; excluding certified nursing assistants (CNAs), dietary employees, cooks, mainte- nance employees, medical records employees, unit sec- retaries, activities employees, social services assistants, central supply employees, registered nurses, office clerical employees, occupational and physical thera- pists, watchmen, guards and supervisors as defined in the Act, and all other employees. On June 13, 2000, in Cases 12–AC–37 and 12–AC–38, pursuant to stipulations executed by the Respondent and 1115 Florida Division of 1199, Service Employees Inter- national Union, AFL–CIO, CLC (Florida 1115/1199), the Regional Director for Region 12 amended the certifi- cations issued by the Board in Cases 12–RC–8064 and 12–RC–8065 to substitute Florida 1115/1199 as the certi- fied representative of the Service unit and the LPN unit, respectively. On December 14, 2001, the Board issued an unpub- lished decision in Case 12–CA–20900, which, inter alia, ordered that Cases 12–RC–8064 and 12–RC–8065 be reopened and remanded to the Regional Director for fur- ther consideration in light of the Supreme Court’s deci- sion in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). On January 16, 2003, the Regional Director issued a Supplemental Decision in Cases 12–RC–8064 and 12– RC–8065. The Respondent subsequently filed a Request for Review, which was granted by the Board on April 9, 2003. On or about July 1, 2005, the Union became the suc- cessor to Florida 1115/1199, with no alteration of the identity of the bargaining representative. On September 30, 2006, the Board remanded the rep- resentation cases for further appropriate action consistent with its holdings in Oakwood Health Care, Inc., 348 NLRB No. 37 (2006), Croft Metals, 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). On January 10, 2007, the Regional Director issued a Decision on Remand which upheld the initial certifica- tions in the Service unit and in the LPN unit in Cases 12– RC–8064 and 12–RC–8065, respectively. On April 25, 2007, the Board issued an Order denying the Respondent’s request for review of the Regional Di- rector’s decision. The Union continues to be the exclusive collective- bargaining representative of the Service unit and the LPN unit under Section 9(a) of the Act. B. Refusal to Bargain By letters dated May 1 and June 7, 2007, the Union requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representa- tive of the Service unit and the LPN unit, respectively. The letters also requested the Respondent furnish the Union information, as set forth above. Since on or about May 1, 2007, the Respondent has failed and refused to recognize and bargain with the Un- ion as the exclusive collective-bargaining representative of both the Service unit and the LPN unit. SUNRISE HEALTH & REHABILITATION CENTER 3 Since on or about May 1, 2007, the Respondent has failed and refused to furnish the Union with the informa- tion it requested. CONCLUSION OF LAW By failing and refusing on and after May 1, 2007, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate units, and by refusing to provide the Union with re- quested relevant information, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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 Respon- dent 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 initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Charging 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); and 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, Richmond Health Care d/b/a Sunrise Health and Rehabilitation Center, Sunrise, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the Union, Service Em- ployees International Union, Florida Healthcare Union, Local 1999, as the exclusive collective-bargaining repre- sentative of the employees in the Service and LPN bar- gaining units. (b) Refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bar- gaining representative of the unit employees. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate units on terms and conditions of employment, and, if an understanding is reached, embody the agreement in a signed agreement: The Service Unit All full-time and regular part-time certified nursing as- sistants, dietary employees, cooks, maintenance em- ployees, medical records employees, unit secretaries, activities employees, social services assistants and cen- tral supply employees employed by Respondent at its Sunrise, Florida facility; excluding all other employees, housekeeping employees, licensed practical nurses, of- fice clerical employees, occupational therapists, regis- tered nurses, physical therapists, guards and supervisors as defined in the Act. The LPN Unit All full-time and regular part-time licensed practical nurse (LPN) charge nurses employed by Respondent at its Sunrise, Florida facility; excluding certified nursing assistants (CNAs), dietary employees, cooks, mainte- nance employees, medical records employees, unit sec- retaries, activities employees, social services assistants, central supply employees, registered nurses, office clerical employees, occupational and physical thera- pists, watchmen, guards and supervisors as defined in the Act, and all other employees. (b) Furnish the Union the information it requested on May 1 and June 7, 2007. (c) Within 14 days after service by the Region, post at its facility in Sunrise, Florida, copies of the attached no- tice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent 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 Respon- dent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since May 1, 2007. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 1 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 31, 2007 ______________________________________ Wilma B. Liebman, Member ______________________________________ Peter C. Schaumber, Member ______________________________________ Peter N. Kirsanow, Member (SEAL) 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with the Union, Service Employees International Union, Florida Healthcare Un- ion, Local 1999, as the exclusive collective-bargaining representative of the employees in the Service unit and the LPN unit. WE WILL NOT refuse to furnish the Union information that is necessary and relevant to its role as the exclusive bargaining representative of unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining units: The Service Unit All full-time and regular part-time certified nursing as- sistants, dietary employees, cooks, maintenance em- ployees, medical records employees, unit secretaries, activities employees, social services assistants and cen- tral supply employees employed by us at our Sunrise, Florida facility; excluding all other employees, house- keeping employees, licensed practical nurses, office clerical employees, occupational therapists, registered nurses, physical therapists, guards and supervisors as defined in the Act. The LPN Unit All full-time and regular part-time licensed practical nurse (LPN) charge nurses employed by us at our Sun- rise, Florida facility; excluding certified nursing assis- tants (CNAs), dietary employees, cooks, maintenance employees, medical records employees, unit secretar- ies, activities employees, social services assistants, cen- tral supply employees, registered nurses, office clerical employees, occupational and physical therapists, watchmen, guards and supervisors as defined in the Act, and all other employees. WE WILL furnish the Union the information it requested on May 1 and June 7, 2007. RICHMOND HEALTH CARE D/B/A SUNRISE HEALTH AND REHABILITATION CENTER