Sprain Brook Manor Nursing Home, LLC

348 NLRB No. 84 Sprain Brook Manor Nursing Home, LLC and New York’s Health and Human Services Union 1199/SEIU. Case 2–CA–37814 December 6, 2006 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH The General Counsel seeks a summary judgment in this case on the ground that there are no genuine issues of material fact as to the allegations of the complaint, and that therefore the Board should find, as a matter of law, that the Respondent has unlawfully refused to furnish requested information to the Union. Pursuant to a charge filed on August 4, 2006,1 the General Counsel issued the complaint on September 15, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to provide informa- tion requested by the Union following the Union’s certi- fication in Case 2–RC–23014. (Official notice is taken of the “record” in the representation proceeding as de- fined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint.2 On October 13, 2006, the General Counsel filed a Mo- tion for Summary Judgment. On October 18, 2006, 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, and the General Counsel filed a reply to the Respon- dent’s 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’s answer admits its refusal to furnish information that is alleged to be relevant and necessary to the Union’s role as bargaining representative, but con- tends that the Respondent has no obligation to provide any information to the Union because the Union was improperly certified in the underlying representation pro- ceeding. Thus, although the Respondent’s answer sum- marily denies that the information requested by the Un- ion is necessary and relevant, it is clear from its answer 1 The complaint erroneously states that the charge was filed on July 21, 2006. 2 The Respondent’s answer denies knowledge or information suffi- cient to form a belief concerning the filing and service of the charge. The Respondent admits, however, that a charge was filed and that it was served with a copy of the charge in this proceeding. Further, cop- ies of the charge and affidavit of service of the charge are included in the documents supporting the General Counsel’s motion, showing the dates of these documents, and the Respondent does not refute the au- thenticity of the documents. and response to the Notice to Show Cause that its refusal to provide the information is based entirely on its conten- tion that the Union’s certification is invalid. The Board rejected the Respondent’s challenge to the Union’s certification in its recent decision in Sprain Brook Manor Nursing Home, 348 NLRB No. 48 (2006). In Sprain Brook, the Board granted the General Coun- sel’s motion for summary judgment and found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union since the Union’s bargaining request of July 6, 2006. All representation issues raised by the Respondent in defense to the instant complaint allegations were or could have been litigated in the prior representation proceeding. Therefore, for the same reasons as set forth in Sprain Brook, we find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). As discussed below, we find that the information re- quested by the Union is presumptively relevant for pur- poses of collective bargaining. Accordingly, we find that there are no factual issues warranting a hearing with re- spect to the Union’s request for information, and that the General Counsel is entitled to summary judgment as a matter of law.3 Thus, we will order the Respondent to furnish the Union with the information it requested, with the exception of employee social security numbers. On the entire record, the Board makes the following 3 In its response to the Notice to Show Cause, the Respondent ar- gues that the instant motion “should have been filed together with the prior refusal to bargain case” because it arises from the “same nucleus of fact.” In addition, the Respondent contends that the Board should defer ruling on the General Counsel’s motion until the United States Court of Appeals issues a final decision on the Respondent’s petition for review of the Board’s order in Sprain Brook Manor Nursing Home, supra. We find no merit in the Respondent’s contentions. The complaint in the previous case involving the Respondent alleged only a general refusal to bargain with the Union in order to test the certification issued in Case 2–RC–23014. Thus, the instant complaint alleges substantively different unlawful conduct that requires a remedy that was not included in the prior proceeding. See, e.g., Clark United Corp., 319 NLRB 328, 329 fn. 2 (1995), affd. 95 F.3d 1147 (5th Cir. 1996) (Table). In any event, the General Counsel has wide discretion in determining whether or not to consolidate proceedings, and the Respondent has failed to show an arbitrary abuse of that discretion. See Service Employees Local 87 (Cresleigh Management), 324 NLRB 774 (1997). Further, it would not be appropriate to delay ordering the Respondent to provide the Union with relevant and necessary requested information pending court review of our prior order requiring the Respondent to bargain with the Union. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, with an office and principal place of business located at 77 Jackson Avenue, Scarsdale, New York, has been engaged in the operation and maintenance of a nursing home. Annually, the Respondent, in the course and conduct of its business operations described above, derives gross revenues in excess of $100,000 and purchases and re- ceives goods and services valued in excess of $5000 di- rectly from suppliers located outside the State of New York. 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 is a health care institution within the meaning of Section 2(14) of the Act. In addition, we find that New York’s Health and Hu- man Services Union 1199/SEIU (the Union) is a labor organization within the meaning of Section 2(5) of the Act.4 II. ALLEGED UNFAIR LABOR PRACTICES Following the election held September 22, 2005, the Union was certified on June 29, 2006, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time and per-diem non- professional employees including licensed practical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laundry employ- ees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but excluding all other employ- ees, including office clerical employees, managers and guards, professional employees and supervisors as de- fined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. The complaint alleges, and the Respondent admits, that by letter dated July 6, 2006, the Union requested the fol- lowing information: 4 The Respondent’s answer denies sufficient knowledge or informa- tion to admit or deny the Union’s status as a labor organization. The Respondent, however, effectively stipulated in the underlying represen- tation proceeding that the Union is a labor organization within the meaning of the Act. Accordingly, we find that the Respondent’s an- swer does not raise any issue warranting a hearing with respect to this allegation. See All American Services & Supplies, 340 NLRB 239 fn. 2 (2003). 1. Any and all documents, including but not limited to job descriptions and performance evaluations, that de- scribe the job duties for all bargaining unit positions. 2. For each employee working in a bargaining unit po- sition, such documents as will show the following: a. job title for each employee; b. date of hire; c. current hourly rate of pay; d. date and amount of all wage increases and bo- nuses granted since 2000; e. regular hours of work; f. number of overtime hours worked in 2003, 2004, and 2005; g. pension vesting and benefit credits; h. social security number; and i. current home address. 3. Documents, including but not limited to summary plan descriptions, that show all fringe benefits such as health insurance, disability, pension, profit sharing, and 401(k) benefits available to or provided to part-time and full-time employees in the bargaining unit. 4. Documents describing vacation leave, holiday leave, sick leave, personal leave, parental leave, educational leave, or any other benefit leaves and the amount of such leave available on an annual basis to any and all employees in the bargaining unit, as well as unpaid leaves. 5. Any and all manuals or other documents, including documents distributed to employees, that describe any of the terms and conditions of employment for employ- ees in the bargaining unit. 6. Any and all documents describing all disciplinary policies, including attendance policies, currently in ef- fect for employees in the bargaining unit. 7. Any and all documents setting forth grievance pro- cedures applicable to employees in the bargaining unit. 8. Any and all documents setting forth procedures for promotions, transfers, and filling vacant positions ap- plicable to employees in the bargaining unit. 9. Any and all documents setting forth policies regard- ing the work week and requirements that employees in the bargaining unit work on weekends. 10. Any and all documents setting forth policies regard- ing overtime work (both voluntary and mandatory), shift differentials and/or any form of premium pay for employees in the bargaining unit. 11. Any and all documents setting forth policies regard- ing health and safety in the workplace. SPRAIN BROOK MANOR NURSING HOME, LLC 3 12. Any and all documents setting forth policies regard- ing uniforms and/or uniform allowances applicable to employees in the bargaining unit. 13. Documents describing tuition or training reim- bursement available to employees in the bargaining unit. 14. Documents describing child care assistance or pro- grams available to employees in the bargaining unit. 15. Documents describing housing programs available to employees in the bargaining unit. 16. Complete copies of cost reports submitted, includ- ing any supplemental submissions, for reimbursement for Medicaid or for any other public entity or program for the years 2003, 2004, and 2005. It is well established that the foregoing types of em- ployment information, with the exception of employee social security numbers, are presumptively relevant for purposes of collective bargaining and must be furnished on request.5 See, e.g., Streicher Mobile Fueling, Inc., 340 NLRB 994, 995 (2003), affd. 138 Fed. Appx. 128 (11th Cir. 2005); Super K-Mart, 322 NLRB 583 (1996); Maple View Manor, 320 NLRB 1149 (1996), enfd. 107 F.3d 923 (D.C. Cir. 1997). As found above, the Respon- dent has not provided any basis for rebutting this pre- sumption. Since about July 6, 2006, the Respondent has failed and refused to furnish the Union with the information requested by it. We find that this failure and refusal con- stitutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since July 6, 2006 to provide the Union with the information it requested on that same date, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 5 The Board has held that employee social security numbers are not presumptively relevant and that the Union must therefore demonstrate the relevance of such information. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802, 803 fn. 2 (2003) (summary judgment denied with respect to social security numbers). Here, the pleadings fail to indicate why the Union wanted the social security numbers, or to otherwise indicate the relevance of this information. Accordingly, we cannot conclude, on the pleadings, that the Respondent was obligated to pro- vide this information to the Union and we therefore deny the Motion for Summary Judgment with respect to the Respondent’s alleged failure to do so, and remand that issue to the Regional Director for further appropriate action. This does not excuse the Respondent’s failure to supply all of the other information requested by the Union. 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 and to furnish the Union with the requested infor- mation. ORDER The National Labor Relations Board orders that the Respondent, Sprain Brook Manor Nursing Home, LLC, Scarsdale, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to furnish New York’s Health and Hu- man Services Union 1199/SEIU with information that is relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time and per-diem non- professional employees including licensed practical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laundry employ- ees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but excluding all other employ- ees, including office clerical employees, managers and guards, professional employees and supervisors as de- fined by the Act. (b) 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) Furnish the Union with the information that it re- quested in its letter dated July 6, 2006, with the exception of social security numbers. (b) Within 14 days after service by the Region, post at its facility in Scarsdale, New York, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event 6 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 that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since July 6, 2006. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 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 furnish New York’s Health and Human Services Union 1199/SEIU with information that is relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative of the employees in the following appropriate unit. All full-time and regular part-time and per-diem non- professional employees including licensed practical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laundry employ- ees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but excluding all other employ- ees, including office clerical employees, managers and guards, professional employees and supervisors as de- fined by the Act. 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 furnish the Union with the information that it requested in its letter dated July 6, 2006, with the excep- tion of social security numbers. SPRAIN BROOK MANOR NURSING HOME, LLC