Grand Island Health Care Center

National Labor Relations Board - Board Decisions

Jul 20, 1981

256 N.L.R.B. 1255 (N.L.R.B. 1981)

GRAND ISLAND HEALTH CARE CENTER 1255
Grand Islander Health Care Center, Inc. and United
Health Care Employees, a Division of the
Rhode Island Workers Union, Local 76, Seiu,
AFL-CIO. Case 1-CA-18311
July 20, 1981
DECISION AND ORDER
Upon a charge filed on February 9, 1981, by
United Health Care Employees, A Division of the
Rhode Island Workers Union, Local 76, SEIU,
AFL-CIO, herein called the Union, and duly
served on Grand Islander Health Care Center, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 1, issued a complaint on
March 18, 1981, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
18, 1980, following a Board election in Case 1-RC-
16904, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about January
29, 1981, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. The com-
plaint also alleges that since on or about January
29, 1981, Respondent has failed and refused to fur-
nish the Union with requested information relevant
and necessary for the purpose of collective bargain-
ing. On March 27, 1981, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 27, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
' Official notice is taken of the record in the representation proceed-
ing. Case I-RC-16904, as the term "record" is defined in Secs 102.68
and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended.
See LTV Electrovvstems. Inc., 16 NLRB 938 (1967), enfd 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 FSupp 573
(D.C.Va. 1967); Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA. as amended.
256 NLRB No. 189
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its opposition to the Motion for Summary
Judgment, as in its answer to the complaint, Re-
spondent contends that it is not obligated to bar-
gain with the Union because the certification issued
to the Union in Case 1-RC-16904 is invalid by
reason that the Board erroneously denied Respond-
ent's request to void the election and reopen the
preelection hearing. Respondent further contends
that it was not required to produce the wage and
employment information requested by the Union
because such information was not necessary for or
relevant to the Union's performance as the exclu-
sive bargaining representative. Respondent also
denies both that the Union requested bargaining
and that it refused to bargain. Finally, in its opposi-
tion to the Motion for Summary Judgment, Re-
spondent argues that it possesses "newly discov-
ered evidence" and that the existence of "special
circumstances" precludes the granting of the Gen-
eral Counsel's motion.
The General Counsel submits that Respondent's
contentions should be discounted as attempts to re-
litigate issues which were or could have been dis-
posed of by the Board in the prior representation
proceeding. We agree.
A review of the entire record, including that in
Case -RC-16904, reveals that a representation
hearing, in which Respondent did not participate,2
was held on May 23, 1980. Thereafter, on June 18,
1980, the Regional Director for Region I issued a
Decision and Direction of Election in which he
found a unit of all service and maintenance em-
ployees in Respondent's facility to be appropriate.
Pursuant to this decision, a secret-ballot election
was held on July 14, 1980, which resulted in a tally
of 44 votes for, and 40 against, the Union, with 6
determinative challenged ballots. Pursuant to Sec-
tion 102.69 of the Board's Rules and Regulations,
the Regional Director conducted an investigation
of the challenged ballots. On August 12, 1980, the
Board agent assigned to the investigation was in-
formed that Respondent was engaging a different
2 Although notified of date, time, and place of the hearing on at least
three ccasions, once by certified mail, no representative of Respondent
appeared at the preelection hearing On May 22. 1980. the day before the
hearing. counsel flor Respondent requested a postponemenl to a future.
unspecified date That same day, the request was denied by the Regional
Director for Region I in light of previous unsuccessful attempts by the
Regional Office to determine alternative hearing dates convenient to Re-
spolndent and its counsel
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney as its counsel of record. Respondent's new
attorney filed a written appearance by letter on
August 18, 1980, and requested that the election be
voided and that the preelection hearing be re-
opened because at least 10 ineligible temporary em-
ployees were improperly permitted to vote due to
(1) improper conduct on the part of Respondent's
former counsel and (2) the Board's conducting the
representation hearing ex parte. On September 22,
1980, the Regional Director issued a Supplemental
Decision in which he found that Respondent's
claims regarding the alleged temporary employees
constituted postelection challenges which would
not be considered by the Board. The Regional Di-
rector therefore denied Respondent's request to
void the election and reopen the preelection hear-
ing. He further overruled challenges to the ballots
of three employees, sustained the challenge to the
ballot of one employee, and found that the chal-
lenges to the ballots of two employees could best
be resolved after a hearing.
Respondent filed a timely request for review of
the Regional Director's Supplemental Decision, re-
questing that the Board sustain the challenge to the
ballot of the employee Rockstraw, the challenge to
whose ballot had been overruled by the Regional
Director, and rule that the election should be
voided and the preelection hearing be reopened.
On December 4, 1980, the Board issued a tele-
graphic order granting Respondent's request for
review with respect to the eligibility of employee
Rockstraw and denying the request for review in
all other respects. The Board ruled, inter alia, that
the ballots of the remaining two employees who
had been deemed eligible by the Regional Director
should be opened and counted. Pursuant to the
Board's ruling, the two determinative challenged
ballots were opened and counted and a revised
tally of ballots was issued by the Regional Director
on December 12, 1980. The revised tally of ballots
showed that the Union had received a majority of
the valid votes cast in the election and that the re-
maining three challenged ballots were not determi-
native of the results of the election. Accordingly,
on December 18, 1980, the Regional Director certi-
fied the Union as the exclusive bargaining repre-
sentative of the employees in the appropriate unit.
Thereafter, the Union by letter dated December
31, 1980, requested that Respondent furnish it with
information in order that it could prepare for con-
tract negotiations. 3 Respondent, by letter dated
3 The information requested by the Union is as follows: the name,
home address, job title, rate of pay, date of hire, and date of last raise for
all employees in the bargainining unit, and a list of all benefits provided
to the employees in said unit.
January 29, 1981, acknowledged receipt of the
Union's letter and stated it would not honor the re-
quest for information because it considered the
Union's certification to be invalid.
Respondent, in its answer to the complaint,
denied that the Union requested it to bargain col-
lectively. However, the Union's letter requesting
information is tantamount to a request for bargain-
ing. Furthermore, in light of Respondent's reply
letter it would have been futile for the Union to
follow its request for information with a literal re-
quest for bargaining. 4
Respondent also denies that it failed and refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the unit.
This defense fails because Respondent's January 29,
1981, letter to the Union, rejecting its request for
information, is sufficient evidence of Respondent's
refusal to bargain.
Finally, Respondent contends that the informa-
tion requested by the Union was not necessary for,
and relevant to, the Union's performance of its
functions as the exclusive bargaining representative
of the employees in the appropriate unit. It is well
established, however, that such information is pre-
sumptively relevant for purposes of collective bar-
gaining and must be provided upon request to the
employees' bargaining representatives. 5 Further-
more, it is well settled that a union is not required
to demonstrate the exact relevance of such infor-
mation unless the employer has submitted evidence
sufficient to rebut the presumption of relevance. 6
Respondent has not attempted to rebut the rel-
evance of the information requested by the Union.
Rather, it stated in its letter to the Union that it
would not furnish the information requested be-
cause it believed the Union's certification was in-
valid. For the reasons stated below regarding the
relitigation of issues previously decided in a repre-
sentation proceeding, this latter assertion is not a
meritorious defense.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding. 7
Respondent does not offer to adduce at a hearing
any evidence that can properly be characterized as
4 Living and Learning Centers. Inc., 251 NLRB 284 (1980).
5 Lighthouse for the Blind of Houston, 248 NLRB 1366, 1367 (1980):
Verona Dyestuff Division Mobay Chemical Corpo.'ation, 233 NLRB 109,
I 110 (1977).
o Curriss-Wright Corporation, Wright Aeronautical Division v. L.R.B..
347 F2d 61 (3d Cir. 1965), enfg. 145 NLRB 152 (1963).
' See Pittsburgh Plate Glass Co. v N.L.R.B.., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
GRAND ISLAND HEALTH CARE CENTER 1257
newly discovered or previously unavailable, nor
does it adequately support its claim that special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. Rather, it is clear from Re-
spondent's opposition to the Motion for Summary
Judgment and from the record as a whole that all
issues raised by Respondent in this proceeding
were or could have been litigated in the prior rep-
resentation proceeding. We therefore find that Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Rhode Island corporation, main-
taining its principal office and place of business at
333 Green End Avenue, Middletown, Rhode
Island, where it is now and continuously has been
engaged in the operation of a proprietary nursing
home and health care facility. Its annual gross rev-
enues exceed $100,000. Annually it purchases
goods and services valued in excess of $10,000 di-
rectly from points located outside the State of
Rhode Island.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II1. THE LABOR ORGANIZATION INVOLVED
United Health Care Employees, A Division of
the Rhode Island Workers Union, Local 76, SEIU,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time service and
maintenance employees of the Respondent at
its Middletown, Rhode Island facility, includ-
ing nurses' aides, orderlies, laundry room em-
ployees, housekeeping employees, dietary
aides, dishwashers and cooks, but excluding
business office clerical employees, licensed
practical nurses, technical employees, regis-
tered nurses, professional employees, manage-
rial employees, guards and supervisors as de-
fined in the Act.
2. The certification
On July 14, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region I designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 18, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 31, 1980,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit, and to
furnish it with information relevant to, and neces-
sary for, the purpose of collective bargaining.
Commencing on or about January 29, 1981, and
continuing at all times thereafter to date, Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit, and to provide it with the re-
quested information.
Accordingly, we find that Respondent has, since
January 29, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and has refused to furnish it with in-
formation relevant and necessary for the purpose
of collective bargaining as requested, and that, by
such refusal, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement. We shall also order that Respondent
provide the Union, upon request, with information
relevant and necessary for collective bargaining.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Grand Islander Health Care Center, Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Health Care Employees, A Division of
the Rhode Island Workers Union, Local 76, SEIU,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time service and
maintenance employees of the Respondent at its
Middletown, Rhode Island facility, including
nurses' aides, orderlies, laundry room employees,
housekeeping employees, dietary aides, dishwashers
and cooks, but excluding business office clerical
employees, licensed practical nurses, technical em-
ployees, registered nurses, professional employees,
managerial employees, guards and supervisors as
defined in the Act constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 18, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about January 29, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, and to pro-
vide it with requested information relevant and
necessary for the purpose of collective bargaining,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Grand Islander Health Care Center, Inc., Middle-
town, Rhode Island, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with United Health Care
Employees, A Division of the Rhode Island Work-
ers Union, Local 76, SEIU, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time service and
maintenace employees of the Respondent at its
Middletown, Rhode Island facility, including
nurses' aides, orderlies, laundry room employ-
ees, housekeeping employees, dietary aides,
dishwashers and cooks, but excluding business
office clerical employees, licensed practical
nurses, technical employees, registered nurses,
professional employees, managerial employees,
guards and supervisors as defined in the Act.
(b) Refusing to provide the above-named Union,
upon request, information relevant and necessary
for the purpose of collective bargaining.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
----
(GRANI) ISI.AND HEAI'TH CARE CENIER 1 25
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Upon request, bargain collectively with the
above-named labor organization by furnishing it
with the following relevant wage and employment
information concerning unit employees: the name,
home address, job title, rate of pay, date of hire,
and date of last raise for all employees in the bar-
gaining unit; and a complete list of all benefits pres-
ently being provided to employees in the bargain-
ing unit such as, but not limited to, health and wel-
fare, paid sick days, vacation, pension bonus system
if working below state minimum staffing patterns,
number of paid holidays, and amount of compensa-
tion if an employee works on a holiday.
(c) Post at its Middletown, Rhode Island, facility
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
In the event that this Order is enfirced hby a Judgment f a United
States Court of Appeals, the Aords in the notice reading i'Po.ied h
Order of the National abor Relations ioars shall read "Po', ted Plrsu-
ant to a Judgment (of the niled States Court of Appeals nfoircing an
Order of the National Labor Relations Board
APPENDIX
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Health Care Employees, A Divi-
sion of the Rhode Island Workers Union
Local 76, SEIU, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE Wll.I. NOT refuse to provide the above-
named Union, upon request. information rele-
vant and necessary for the purpose of collec-
tive bargaining.
WE WIL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time service
and maintenance employees at our Middle-
town, Rhode Island facility, including
nurses' aides, orderlies, laundry room em-
ployees, housekeeping employees, dietary
aides, dishwashers and cooks, but excluding
business office clerical employees, licensed
practical nurses, technical employees, regis-
tered nurses, professional employees, man-
agerial employees, guards and supervisors as
defined in the Act.
WE WILL, upon request, bargain collectively
with the above-nmaed Union by furnishing it
with the concerning relevant wage and em-
ployment information titled, rate of pay, date
of hire, and date of last raise for all employees
in the bargaining unit; and a complete list of
all benefits presently being provided to em-
ployees in the bargaining unit such as, but not
limited to, health and welfare, paid sick days,
vacation, pension, bonus system if working
below state minimum staffing patterns, number
of paid holidays, and amount of compensation
if an employee works on a holiday.
GRAND ISLANDER HEALTH CARE
CENTER, INC.
' U.S. Government Printing Office: 1982-361-554/3