1621 Route 22 West Operating Company LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center.

National Labor Relations Board - Board DecisionsDec 30, 2011

357 N.L.R.B. 1866 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 357 NLRB No. 153 1866 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center and 1199 SEIU United Healthcare Workers East, New Jersey Region. Case 22– CA–064426 December 30, 2011 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS BECKER AND HAYES This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on September 13, 2011, the Acting General Counsel issued the complaint on October 18, 2011, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 22–RC–03139. (Official notice is taken of the “record” in the representation proceeding as defined 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, and asserting an affirmative defense. On November 10, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On November 14, 2011, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. Pursuant to the provisions of Section 3(b) of the Na- tional Labor Relations Act, as amended, the National La- bor Relations Board has delegated its authority in this pro- ceeding to a three-member panel..1 Ruling on Motion for Summary Judgment The Respondent’s answer denies that it has refused to bargain with the Union and to furnish information that is relevant and necessary to the Union’s role as bargaining representative, and further states that in light of its mo- tion for reconsideration in the underlying representation 1 Chairman Pearce, who is recused and did not participate in the un- derlying decision, is a member of the present panel but did not partici- pate in deciding the merits of this proceeding. In New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme Court left undisturbed the Board’s practice of deciding cases with a two-member quorum when one of the panel members has recused himself. Under the Court’s reading of the Act, “the group quorum provision [of Sec. 3(b)] still operates to allow any panel to issue a deci- sion by only two members if one member is disqualified.” New Pro- cess Steel, 130 S.Ct. at 2644; see also Correctional Medical Services, 356 NLRB 277, 277 fn. 1 (2010). proceeding, it “specifically reserves and does not waive its right to refuse to bargain to test certification in the event Respondent’s Motion for Reconsideration should be denied.”2 In addition, in its response to the Notice to Show Cause, the Respondent contends that a material issue of fact exists warranting a hearing regarding the validity of the Union’s request for bargaining. Specifi- cally, the Respondent maintains that the August 31, 2011 letter sent by the Union’s attorney to the Respondent does not constitute a valid request for bargaining because the letter was sent directly to the Respondent, rather than its attorney, in violation of the rules of professional eth- ics and therefore it is invalid and void from its inception. We find that neither the Respondent’s denial of the al- legation that it has refused to bargain with the Union nor its assertion that the Union’s request for bargaining is invalid raises a genuine issue of material fact in warrant- ing a hearing. It is undisputed that the Respondent and its attorney were put on notice by the Union’s August 31, 2011 letter that the Union sought to meet and bargain over terms and conditions of employment for the bar- gaining unit employees pursuant to the Union’s certifica- tion as the collective-bargaining representative of those employees.3 Further, despite the Respondent’s denial in its answer of the allegation that it has refused to bargain, and its contention that it “specifically reserves” its right to test certification, nowhere in its answer or response to the Notice to Show Cause does the Respondent assert that it has offered to meet and bargain with the Union. On the contrary, it is clear from the other denials in the Respondent’s answer and its argument in its response that the Respondent is in fact refusing to bargain with the Union in order to test its certification.4 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 2 Respondent’s answer, p. 3. On November 16, 2011, the Board is- sued an Order denying the Respondent’s motion for reconsideration in Case 22–RC–013139. (An Order correcting the November 16 Order issued on November 17, 2011.) The Respondent also filed a motion for special permission to appeal the Regional Director’s decision to process Case 22–CA–064426, arguing that the case should not have been pro- cessed until the pending motion for reconsideration was resolved. By letter dated November 21, 2011, the Associate Executive Secretary informed the Respondent that its request for special permission to ap- peal was moot. 3 The Respondent’s assertion that the Union’s attorney violated State rules of professional conduct by sending this letter directly to the Respondent rather than to its attorney is immaterial in this proceeding because the Board has no jurisdiction over such matters. 4 See, e.g., Sprain Brook Manor Nursing Home, 348 NLRB 851, 852 fn. 5 (2006), and Indeck Energy Services of Turners Falls, 318 NLRB 321, 321 (1995). SOMERSET VALLEY REHABILITATION & NURSING CENTER 1867 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).5 We also find that there are no factual issues warranting a hearing with respect to the Union’s request for infor- mation. By letter dated August 31, 2011, the Union re- quested the following information from the Respondent: 1. The names, job title, date of hire, regular hours of work, hourly rate of pay and home address for all em- ployees in the collective-bargaining unit certified by the NLRB; and 2. Copies of daily work schedules for all nursing units for the month of August 2011. It is well established that information concerning the terms and conditions of employment of unit employees is presumptively relevant for purposes of collective bar- gaining 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 this information.6 Accord- ingly, we grant the Motion for Summary Judgment, and will order the Respondent to bargain with the Union and to furnish the Union the information requested. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been en- gaged in the business of operating a rehabilitation center and nursing facility in Bound Brook, New Jersey (the Bound Brook facility), providing health care and related services.7 During the 12-month period preceding the 5 Member Hayes dissented from the Board’s Decision and Certifica- tion of Representative in the underlying representation proceeding. He would have sustained the Employer’s Objection 1, and set aside the election results. While Member Hayes remains of that view, he agrees that the Respondent has not has not presented any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for institutional reasons, Member Hayes agrees with the decision to grant the motion for summary judgment. 6 In so finding, we construe the Union’s request for the information in par. 2 of its request as pertaining to unit employees, although the request is not specifically described as such. See Metro Health Foun- dation, supra at 803 fn. 2. 7 The Respondent denies the allegation in complaint par. 2(a) that it is a corporation. However, it admits that it is engaged in commerce issuance of the complaint, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $100,000 and during the same pe- riod of time, purchased and received at its Bound Brook facility goods and services valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution with- in the meaning of Section 2(14) of the Act. We find that 1199 SEIU United Healthcare Workers East, New Jersey Region, the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held September 2, 2010, the Union was certified on August 26, 2011, 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 nursing assistants, housekeepers, reha- bilitation technicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, dieti- cians, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, payroll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain Since August 31, 2011, and September 12, 2011, the Union has requested the Respondent to bargain, and since August 31, 2011, the Union has requested the Re- spondent to furnish information. Since August 31, 2011, the Respondent has refused to do so. We find that this failure and refusal constitutes an unlawful failure and refusal to recognize and bargain with the Union in viola- tion of Section 8(a)(5) and (1) of the Act. within the meaning of the Act. Accordingly, this denial does not raise any issue of fact warranting a hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1868 CONCLUSION OF LAW By refusing since August 31, 2011, to recognize and bargain with the Union as the exclusive collective- bargaining representative of the employees in the appro- priate unit and to furnish the Union requested infor- mation, the Respondent has engaged in unfair labor prac- tices 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 Respond- ent 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 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, 1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center, Bound Brook, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with 1199 SEIU United Healthcare Workers East, New Jersey Region, as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining rep- resentative of the unit employees. (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) On request, recognize and bargain with the Union as the exclusive representative of the employees in the following 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 and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, reha- bilitation technicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by the Employer at its Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, dieti- cians, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech therapists, social workers, staffing coordinators, payroll/benefits coordinators, all other professional employees, guards and supervisors as defined in the Act. (b) Furnish the Union with the information it requested on August 31, 2011. (c) Within 14 days after service by the Region, post at its facility in Bound Brook, New Jersey, copies of the attached notice marked “Appendix.”8 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 22, after being signed by the Respondent’s author- ized representative, 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.9 Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed its 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 August 31, 2011. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- 8 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.” 9 As stated in his dissenting opinion in J. Picini Flooring, 356 NLRB 11 (2010), Member Hayes disagrees with the Board’s decision to re- quire electronic distribution of the notice. He acknowledges, however, that extant Board law requires it. Accordingly, for institutional reasons, and in the circumstance of this proceeding, he joins with Member Becker in ordering this remedy. SOMERSET VALLEY REHABILITATION & NURSING CENTER 1869 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 fail and refuse to recognize and bargain with 1199 SEIU United Healthcare Workers East, New Jersey Region, as the exclusive collective-bargaining representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. 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 unit: All full-time and regular part-time and per diem non- professional employees including licensed practical nurses, certified nursing assistants, housekeepers, reha- bilitation technicians, dietary cooks, dietary aides, laundry aides, recreation assistants, unit secretaries, medical records coordinators, maintenance workers, porters and receptionists employed by us at our Bound Brook, New Jersey location, but excluding all office clerical employees, registered nurses, dieticians, physi- cal therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech ther- apists, social workers, staffing coordinators, pay- roll/benefits coordinators, all other professional em- ployees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information it request- ed on August 31, 2011. 1621 ROUTE 22 WEST OPERATING COMPANY, LLC D/B/A SOMERSET VALLEY REHABILITATION AND NURSING CENTER