Golden Crest Healthcare Center

National Labor Relations Board - Board Decisions

Feb 16, 2007

349 N.L.R.B. 37 (N.L.R.B. 2007)

349 NLRB No. 37
Beverly Enterprises–Minnesota, Inc. d/b/a Golden
Crest Healthcare Center and United Steelwork-
ers of America, AFL–CIO, CLC. Case 18–CA–
16616–1
February 16, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS 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 filed on October 7, 2002, the
General Counsel issued the complaint on October 15,
2002, alleging 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 Un-
ion certification in Cases 18–CA–16415 and 18–CA–
16416. (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(b);
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 certain af-
firmative defenses.
On December 17, 2002, the General Counsel filed a
Motion for Summary Judgment and a brief in support.
On December 18, 2002, the Board issued an order trans-
ferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On Janu-
ary 22, 2003, the Respondent filed a motion to revoke
certification and opposition to the General Counsel’s
motion. The Union filed a brief in support of the General
Counsel’s motion and in opposition to the Respondent’s
motion.
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 its refusal to bargain, but con-
tests the validity of the certification based on its conten-
tion, raised and rejected by the Board in the representa-
tion proceeding, that RNs and LPNs, who act as charge
nurses, are statutory supervisors.1 In addition, the Re-

1 See Golden Crest Healthcare Center, 348 NLRB No. 39 (2006), in
which the Board, on remand from the Eighth Circuit Court of Appeals,
specifically considered whether, under NLRB v. Kentucky River Com-
munity Health Care, 532 U.S. 706 (2001), the Respondent’s RNs and
LPNs who act as charge nurses assign and responsibly direct other
employees, and the scope or degree of independent judgment used in
the exercise of that authority. The Board found that the Respondent’s
charge nurses are employees, and not supervisors, under Sec. 2(11) of
the Act.
spondent denies that it is obligated to provide the infor-
mation requested by the Union because the Union was
improperly certified.
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 letter dated August 30, 2002, the Union
requested the following information:
1. A listing of the names, addresses, job titles, dates of
hire, dates of birth, present wage rates, the date of each
employee’s last pay increase, and the number of hours
each employee works per pay period.
2. Names of those in the unit who have health insur-
ance coverage and whether it is single coverage or family
coverage, the amount the employee has to pay for this
coverage, and the total premium cost for single and fam-
ily coverage.
3. The same information in item number 2 for dental
coverage.
4. Job descriptions for each job in the unit.
5. Information as to holiday benefits, vacation bene-
fits, sick leave benefits, any life insurance benefits, pen-
sion benefits, with respect to the unit.
6. Any present policy manual that pertains to the unit
employees.
In its answer, the Respondent relies on its challenge to
the Union’s certification as a defense to its refusal to
provide the Union with the requested information. It
does not specifically deny that the information is neces-
sary for and relevant to the Union’s duties as the exclu-
sive collective-bargaining representative of the unit. It is
well-established that all of the foregoing types of infor-
mation are presumptively relevant and must be furnished
on request. See, e.g., Streicher Mobile Fueling, Inc., 340
NLRB 994, 995 (2003); Super K-Mart, 322 NLRB 583
(1996); Maple View Manor, 320 NLRB 1149 (1996),
enfd. 107 F.3d 923 (D.C. Cir. 1997). The Respondent
has not provided any basis for rebutting this presump-
tion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Accordingly, we grant the Motion for Summary Judg-
ment, and will order the Respondent to bargain and to
furnish the information requested by the Union.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a Minnesota cor-
poration with an office and place of business in Hibbing,
Minnesota, has been engaged in the operation of nursing
home facilities, including a skilled nursing facility at its
Hibbing, Minnesota location.
During the 12-month period preceding issuance of the
complaint, a representative period, the Respondent, in the
conduct of its business operations described above, de-
rived revenues in excess of $1 million and purchased and
received at its Hibbing, Minnesota facility, goods and
services valued in excess of $50,000 directly from points
located outside the State of Minnesota.
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 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 representation elections held on April 8,
1999, the Union was certified on April 15, 1999. On
September 29, 2006, that certification was reaffirmed,
and the Board reissued a certification of representative
finding that the Union was certified as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time registered nurses and
licensed practical nurses employed by the Employer at
its Hibbing, Minnesota facility; excluding guards and
supervisors as defined in the Act, and all other employ-
ees.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated August 30, 2002, the Union requested
the Respondent to recognize and bargain with it as the
exclusive collective-bargaining representative of the cer-
tified unit, and to provide it with specific information.
The information requested by the Union is necessary for,
and relevant to, the Union’s performance of its duties as

2 The Respondent’s motion to revoke certification is therefore de-
nied.
the exclusive collective-bargaining representative of the
unit.
Since about September 13, 2002, the Respondent has
failed and refused to meet and bargain with the Union
and to furnish it with the requested information. We find
that this failure and refusal constitutes an unlawful re-
fusal to bargain in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By refusing, since September 13, 2002, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit and to
provide the Union with the requested information, 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.
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 information requested by the Union.
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); 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, Beverly Enterprises–Minnesota, Inc. d/b/a
Golden Crest Healthcare Center, Hibbing, Minnesota, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with United
Steelworkers of America, AFL–CIO, CLC, as the exclu-
sive bargaining representative of the employees in the
bargaining unit.
(b) Refusing to furnish the Union with information that
is relevant and necessary to the performance of its duties
as the exclusive collective-bargaining 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.
GOLDEN CREST HEALTHCARE CENTER 3
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, em-
body the agreement in a signed agreement:
All full-time and regular part-time registered nurses and
licensed practical nurses employed by the Employer at
its Hibbing, Minnesota facility; excluding guards and
supervisors as defined in the Act, and all other employ-
ees.
(b) Furnish the Union with the information it requested
on August 30, 2002.
(c) Within 14 days after service by the Region, post at
its facility in Hibbing, Minnesota, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 18,
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
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 September 13, 2002.
(d) 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.

3 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.”
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 recognize and bargain with
United Steelworkers of America, AFL–CIO, CLC, as the
exclusive collective-bargaining representative of the em-
ployees in the bargaining unit.
WE WILL NOT refuse to furnish the Union with informa-
tion that is relevant and necessary to the performance of
its duties as the exclusive collective-bargaining represen-
tative 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, 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 registered nurses and
licensed practical nurses employed by us at our
Hibbing, Minnesota facility; excluding guards and su-
pervisors as defined in the Act, and all other employ-
ees.
WE WILL furnish the Union with the information it re-
quested on August 30, 2002.
BEVERLY ENTERPRISES–MINNESOTA, INC. D/B/A
GOLDEN CREST HEALTHCARE CENTER