Fair Oaks Health Care Center

National Labor Relations Board - Board Decisions

Apr 2, 1997

323 N.L.R.B. 60 (N.L.R.B. 1997)

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NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Mid America Care Foundation d/b/a Fair Oaks
Health Care Center and Teamsters Local
Union 325, International Brotherhood of Team­
sters, AFL–CIO. Case 33–CA–12001
April 2, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on November 20, 1996,
the General Counsel of the National Labor Relations
Board issued a complaint on January 2, 1997, alleging
that the Respondent has violated Section 8(a)(5) and
(1) of the National Labor Relations Act by refusing the
Union’s request to bargain and to furnish necessary
and relevant information following the Union’s certifi­
cation in Case 33–RC–4070 (a/k/a 19–RC–13230).
(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 Respondent filed
an answer and an amended answer admitting in part
and denying in part the allegations in the complaint.
Thereafter, counsel for the Respondent and counsel for
the General Counsel entered into a stipulation concern­
ing certain allegations of the complaint.
On March 17, 1997, the General Counsel filed a
Motion for Summary Judgment. On March 18, 1997,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo­
tion should not be granted. On March 21, 1997, the
Respondent filed a response.
Ruling on Motion for Summary Judgment
In its answers and response, and in the stipulation,
the Respondent admits its refusal to bargain and to fur­
nish information, but attacks the validity of the certifi­
cation on the basis of its contention that the unit was
improperly certified by the Board in the representation
proceeding because the unit contains supervisors as de-
fined in Section 2(11) of the Act as well as profes­
sional and technical employees, office clerical, and
confidential employees.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen­
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre­
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro­
ceeding. We therefore find that the Respondent has 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).
We also find that there are no factual issues requir­
ing a hearing with respect to the Union’s request for
information. The Union requested the following infor­
mation from the Respondent:
(1) A current list of all unit employees, their
work histories, classifications, seniority dates and
pay roll histories.
(2) Documents and all other relevant informa­
tion that demonstrate and explain all current work
rules, practices and procedures concerning dis­
cipline and job assignments or reassignments etc.
(3) Documents and all other relevant informa­
tion regarding all benefits inclusive of pension
plan, insurance, vacations, sick days, holidays,
and bereavement, as well as any other data that
may be pertinent to meaningful negotiations.
The Respondent’s answer admits that the Respondent
refused to provide this information to the Union. Fur­
ther, although the Respondent’s answer effectively de­
nies that the information requested is necessary and
relevant to the Union’s duties as the exclusive rep­
resentative of the unit employees, it is well established
that such information is presumptively relevant and,
unless the presumption is rebutted, must be furnished
on request. See, e.g., Masonic Hall, 261 NLRB 436
(1982); and Mobay Chemical Corp., 233 NLRB 109
(1977).
Accordingly we grant the Motion for Summary
Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Illinois
corporation, with an office and place of business in
South Beloit, Illinois, has been engaged in the business
of health care as a long-term care facility. During the
12-month period ending December 31, 1995, the Re­
spondent, in conducting its business operations de-
scribed above, derived gross revenues in excess of $1
million and purchased and received at its South Beloit,
Illinois facility materials or services valued at more
than $50,000 directly from points outside the State of
Illinois. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that the Union is a labor
1 Member Higgins did not participate in the underlying representa­
tion proceeding. However, he agrees with his colleagues that the Re­
spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro­
ceeding warranting a hearing.
323 NLRB No. 60
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held on July 24, 1996, the
Union was certified on September 12, 1996, as the ex­
clusive collective–bargaining representative of the em­
ployees in the following appropriate unit:
All full-time and regular part-time non-profes­
sional employees employed by the Employer at its
South Beloit, Illinois facility; but excluding all of­
fice clerical employees, registered nurses, guards
and supervisors as defined by the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since September 24 and October 25, 1996, the
Union has requested the Respondent to bargain and to
furnish information, and, since September 24, 1996,
the Respondent has refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after September 24, 1996, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
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 Sec­
tion 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 un­
derstanding 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 serv­
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent 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, Mid America Care Foundation d/b/a Fair
Oaks Health Care Center, South Beloit, Illinois, its of­
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
325, International Brotherhood of Teamsters, AFL–
CIO as the exclusive bargaining representative of the
employees in the bargaining unit, and refusing to fur­
nish the Union information that is relevant and nec­
essary to its role as the exclusive bargaining represent­
ative of the unit employees.
(b) In any like or related manner interfering with,
restraining, 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 exclu­
sive representative of the employees in the following
appropriate unit on terms and conditions of employ­
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time non-profes­
sional employees employed by the Employer at its
South Beloit, Illinois facility; but excluding all of­
fice clerical employees, registered nurses, guards
and supervisors as defined by the Act.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep­
resentative of the unit employees.
(c) Within 14 days after service by the Region, post
at its facility in South Beloit, Illinois, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 33 after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 no­
tices 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 pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since November 20, 1996.
2 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
National 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.’’
FAIR OAKS HEALTH CARE CENTER 3
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 2, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., 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
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters
Local Union 325, International Brotherhood of Team­
sters, AFL–CIO as the exclusive 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 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 full-time and regular part-time non-profes­
sional employees employed by us at our South
Beloit, Illinois facility; but excluding all office
clerical employees, registered nurses, guards and
supervisors as defined by the Act.
WE WILL furnish the Union the information that it
requested on September 24 and October 25, 1996.
MID AMERICA CARE FOUNDATION D/B/A
FAIR OAKS HEALTH CARE CENTER

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 TEAMSTERS LOCAL UNION 325, INTERNATIONAL BROTH­
ERHOOD OF TEAMSTERS, AFL–CIO as the exclusive representative of the employees in the bar-
gaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and nec­
essary 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 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 full-time and regular part-time non-professional employees employed by us at our South Be­
loit, Illinois facility; but excluding all office clerical employees, registered nurses, guards and su­
pervisors as defined by the Act.
WE WILL furnish the Union the information that it requested on September 24 and October 25, 1996.
MID AMERICA CARE FOUNDATION d/b/a FAIR
OAKS HEALTH CARE CENTER
(Employer)
Dated By
(Representative) (Title)
300 Hamilton Boulevard, Suite 200, Peoria, Illinois 61602-1246, Telephone 309–671–7068.
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