Hospitality Care Center

National Labor Relations Board - Board Decisions

Jul 6, 1992

307 N.L.R.B. 1131 (N.L.R.B. 1992)

1131
307 NLRB No. 174
HOSPITALITY CARE CENTER
1 We correct the following errors in the judge’s decision: in fn. 6,
the case number should be 22–CA–17402; and in sec. III, par. 25,
the available dates in the Union’s letter were December 26, 1990,
and January 2, 3, and 9, 1991.
1 All dates herein, unless otherwise specified are in 1990.
2 At the outset of the hearing, Respondent amended its answer to
raise an affirmative defense of deferral to arbitration to the allega-
tions of par. 9(b) of the complaint, alleging a refusal to make fund
contributions, since April 1990. Both General Counsel and Charging
Party agreed on the record to the deferral of this allegation. Re-
spondent also confirmed on the record its admission as to par. 9(a)
of the complaint, alleging a failure to notify the Union, since April
1990 of all new hires, as required by the contract.
3 The contract provides for such reopening 90 days prior to the ex-
piration of the third year of the agreement.
New Associates d/b/a Hospitality Care Center and
1115 Nursing Home and Hospital Employees
Union, a Division of 1115 Joint Board. Cases
22–CA–17250 and 22–CA–17402
July 6, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 19, 1991, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, New Associates d/b/a Hos-
pitality Care Center, Newark, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Renee Crain, Esq., for the General Counsel.
Morris Tuchman, Esq., of New York, New York, for the Re-
spondent.
Gary P. Rothman, Esq. and Richard Greenspan, P.C., of
White Plains, New York, for the Charging Party.
DECISION
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by 1115 Nursing Home & Hospital Employees
Union, a Division of 1115 Joint Board (the Union or Local
1115), the Regional Director for Region 22 issued an order
consolidating cases, consolidated complaint and notice of
hearing on January 31, 1991, alleging that New Associates
d/b/a Hospitality Care Center (Respondent) violated Section
8(a)(1) and (5) of the Act by in substance failing to notify
the Union of the names of new hires, failing to make fund
contributions as required by its collective-bargaining agree-
ment, failing and refusing to supply the Union with relevant
information, and by failing and refusing to meet and bargain
with the Union since on or about September 1990.1
The hearing with respect to the issues raised by the com-
plaint was heard before me in Newark, New Jersey, on
March 18, 1991.2 A memorandum has been submitted by Re-
spondent and has been carefully considered. Based on the en-
tire record, including my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with a place of business in
Newark, New Jersey (the Newark facility), has been engaged
in the operation of a nursing home providing inpatient med-
ical and professional care services. During the calendar year
ending December 31, 1990, Respondent in the course and
conduct of its operations, derived gross revenues in excess
of $100,000 and purchased and received at its Newark facil-
ity goods and materials valued in excess of $5000 directly
from points located outside the State of New Jersey.
Respondent admits, and I so find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and a health care institution within
the meaning of Section 2(14) of the Act.
II. LABOR ORGANIZATION
It is also admitted, and I so find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS
At all times material, the Union has been recognized by
Respondent as the exclusive bargaining representative of Re-
spondent’s employees in an appropriate unit, consisting of all
employees, excluding nurses, and various other categories of
employees and supervisors. Such recognition has been em-
bodied in various collective-bargaining agreements, the most
recent of which was effective by its terms from February 4,
1988, to August 13, 1991.
On May 1, 1990, the Union sent a letter, signed by Paul
Aldrich, its secretary-treasurer to Respondent, exercising pur-
suant to the terms of the contract, its right to reopen and ne-
gotiate wages and conditions of employment.3 Respondent
admits that it received this correspondence from the Union.
Aldrich and Nathaniel Hall, the Union’s divisional coordi-
nator, both testified that the Union sent another letter, also
dated May 1, 1990, to Respondent, signed by Aldrich, re-
questing the names of all employees covered by the agree-
ment, along with their current home addresses, dates of hire,
categories, and wage rates. Respondent denied receipt of this
document, and although it was allegedly sent by certified
mail, return receipt requested, no return receipt establishing
receipt was introduced at trial.
Sidney Schiff, Respondent’s administrator, denied ever re-
ceiving the second May 1 letter, requesting names and ad-
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent proposed that the Union could move to reopen the
contract in the succeeding years for discussion of wage increases.
dresses. In this connection, it is noteworthy that Schiff sent
a letter to Aldrich, dated May 10, which acknowledges re-
ceipt of the first letter, regarding the request for negotiations,
but made no reference to the second letter, requesting names
and addresses.
However, Hall testified that he had a number of telephone
conversations with Schiff during the month of May and June,
wherein he (Hall) in addition to discussing negotiation dates,
told Schiff and asked him about the list of employees that
the Union had previously requested. Significantly, Schiff did
not deny having these discussions with Hall concerning both
letters. Schiff’s response was that he ‘‘probably’’ did have
conversations in May 1990 with Hall, but he did not remem-
ber what was said by either party.
Particularly, in view of Schiff’s uncertain and evasive tes-
timony, I credit Hall that he had a number of conversations
with Schiff in May and June during which he reiterated the
requests made by the Union in its May 1 letter for the list
of names, addresses, and the information requested therein.
Therefore, I need not decide whether Respondent actually re-
ceived the letter in the mail that the Union sent on May 1.
Both Aldrich and Hall testified to various reasons why the
Union needed to have the information requested. Aldrich as-
serted that the Union wanted the names of employees so that
it could know which employees were in the unit so that it
could facilitate their joining the Union. As for addresses, the
Union needed to be able to communicate with the employees
to make them aware of their benefits and inform them of the
membership process. The dates of hire, wage rates, and clas-
sifications of employees were needed, according to Aldrich,
to facilitate the Union’s ability to determine their eligibility
for fringe benefits and raises and to sign people into the
Union.
Hall testified that the Union needed the information in
order to properly formulate the Union’s demands for bar-
gaining.
Respondent never supplied these items of information re-
quested by the Union, nor did any of its witnesses furnish
any explanation as to why it did not do so. Respondent did
elicit under cross-examination of General Counsel’s wit-
nesses, that some of the information requested by the Union
could have been obtained by the Union by resort to various
provisions in the contract, such as the requirement that Re-
spondent submit monthly reports, and notify the Union of
new employees. Moreover, the contract also authorizes the
Union to conduct an audit of Respondent’s payroll records,
in order to determine compliance with fringe benefit pay-
ments by Respondent to the Union’s various funds, wherein
it was admitted that some of the information requested by the
Union could be ascertained.
On June 1, the Union sent a letter to Respondent, signed
by Grossberg Miranda, business representative, accompanied
by a list of demands for a new agreement. The list requests
wage increases for each year of the new proposed agreement,
including a raise of $20 per week on 8/13/90, plus other in-
creases in benefits. The letter also suggests two dates in June
for possible negotiation sessions.
After a number of telephone conversations between Schiff
and Miranda and Hall, it was agreed to commence negotia-
tions on July 11, at Respondent’s facility. In addition to July
11, the parties met twice more, the last meeting occurring on
August 9. Miranda represented the Union at the first two ses-
sions by himself, and was joined by Hall at the August 9
session. Schiff and Respondent’s attorney Peter Schneider
represented Respondent.
At each meeting, Respondent rejected the Union’s de-
mands, and explained to the Union that due to problems that
it was having in obtaining reimbursement from the State, it
needed to have a total wage freeze for the first year of the
contract.4 Respondent also asked for reductions in benefits
for new employees. At one of the meetings, the Union low-
ered its wage demands for the third year of the contract, and
reduced its demands for contributions to the Union’s funds,
also for the third year of the contract.
Respondent continued to press for a first year wage freeze
and relief for new hires in general. The Union responded, by
Hall, that the Union couldn’t give Respondent any relief for
the new hires, unless it put something on the table for the
first year.
Respondent continued to refuse to offer any increases in
the first year, and at one point Schneider offered the Union
the opportunity to inspect Respondent’s records. The union
representatives made no response to Schneider’s offer at that
time.
During the course of the August 9 meeting, Hall asked the
Respondent’s representatives for the list of bargaining unit
employees, addresses, dates of hire, and classifications that
it had previously requested. At that point, Schneider bent
over and whispered something to Schiff, who in turn whis-
pered something in return. Schneider then told Hall that Re-
spondent still did not have the list for him.
With respect to the substance of the negotiations, Schnei-
der continued to take the position that Respondent must have
a first year freeze. He added that Respondent was not able
to change this position, ‘‘today or tomorrow.’’ Hall stated
that the Union was prepared to stay as long as necessary to
negotiate a contract, and asked Respondent for additional
dates for negotiations. Schneider replied that he had no addi-
tional dates to give at that time. The meeting ended with no
agreements reached other than on the duration of the con-
tract, and with no agreement on additional dates for subse-
quent negotiations.
After this meeting, Hall reported to his superior Aldrich,
that the last meeting was a ‘‘waste of time.’’ Hall informed
Aldrich that due to the financial situation of the facility, Re-
spondent stated that it could not provide any increases in
wages or benefits.
Shortly, after the last meeting, Aldrich spoke to Jack
Rosen, Respondent’s owner. Rosen told Aldrich that the fa-
cility was losing money, had never produced any profits, and
that he had left matters in the hands of his attorney to pro-
ceed in the way that the attorney felt was best for the home.
Shortly thereafter, Aldrich contacted Schneider by phone.
Aldrich asked Schneider again for the list of names, address-
es, classifications, and dates of hire, and reminded Schneider
of the importance of having the list. Schneider replied that
he would speak to his client about the matter and get back
to Aldrich. Aldrich also discussed with Schneider Respond-
ent’s position at the negotiations that it was not able to give
any increases. Aldrich then asked Schneider to permit the
Union to audit Respondent’s financial records. Schneider re-
1133HOSPITALITY CARE CENTER
5 Aldrich, prior to this discussion with Rosen, had spoken to Re-
spondent’s attorney about negotiations but couldn’t get a definite an-
swer from the attorney about the matter.
6 In the interim, on December 6, the Union filed a charge in Case
22–CA–12701, alleging a refusal to meet and bargain with the Union
since August 9.
7 Schiff testified that because of the petition, ‘‘there might be an
election.’’
sponded that he would check with the ‘‘owner’’ (Rosen) and
Aldrich will be contacted. Aldrich testified that because of
Respondent’s position that it could not afford to pay any in-
creases, the Union needed to verify Respondent’s financial
condition by auditing its financial records.
At negotiations, the Union received no responses from Re-
spondent with respect to either the request for the list of em-
ployees, or Aldrich’s request for a financial audit of Re-
spondent’s records.
On or about September 7, the Union sent a strike notice
to the Respondent, scheduling a strike for September 17. On
September 11, as a result of communications from the execu-
tive director of the New Jersey State Board of Mediation,
and from Wellington Davis, the mediator assigned to the
case, the Union postponed the strike. Aldrich sent a telegram
on that date to the Mediation Board and to Respondent, indi-
cating the Union will accede to the direction of the Board
to postpone the strike until Davis has had an opportunity to
meet with the parties.
Thereafter, the Union attempted to arrange for further ne-
gotiation sessions but was unsuccessful. Aldrich spoke to
Rosen in late September and asked about going back to the
bargaining table. Rosen responded that he had attorneys han-
dling this for him and he didn’t want to get involved. Rosen
added that he would discuss Aldrich’s request with his attor-
ney. Aldrich received no further response to this request
from either Rosen or his attorney.5
At some point, not specifically disclosed by the record, an
RD petition was filed by an employee. The charge in Case
22–CA–17250 was filed by the Union on September 12, and
alleges a refusal to make contributions to the Union’s funds
and a refusal to submit accurate lists of employees to the
Union. A complaint and notice of hearing was issued by the
Region on October 26, alleging that Respondent refused to
supply relevant information since May 1, 1990. On Novem-
ber 8, 1990, a first amended complaint was issued, adding
allegations that Respondent failed to notify the Union of
names of new employees, and failed to make fund contribu-
tions.
On December 3, Aldrich instructed the Union’s controller,
Ronald Germana, to contact Respondent and request what-
ever financial records he would need to ascertain the finan-
cial position of the home. Germana called Schiff on that
date, and asked for a copy of Respondent’s audited financial
statements for the past several years. Schiff replied that he
would contact Respondent’s lawyer and get back to the
Union. Schiff did not get back to Germana or the Union.6
About a week later, Germana reported to Aldrich, that he had
requested the financial information from Respondent, and
had not received anything, nor had he heard from Respond-
ent’s officials about the matter.
On December 14, not having heard from Respondent, Al-
drich sent a letter to Schiff reflecting that Respondent had in-
dicated it was financially unable to agree to wage increases.
The letter adds that ‘‘the Union again requests that it be al-
lowed to examine the Employer’s financial records. Our pre-
vious demand has been ignored.’’ On the same date, Aldrich
sent a letter to Davis, the mediator, with a copy to Respond-
ent and their new attorney. The letter acknowledges receipt
of Davis’ earlier letter to Respondent’s attorney, and asserts
that the Union ‘‘has always been available to meet for nego-
tiations and we await confirmation of the following available
dates: December 26, 1990 and January 23 and 9, 1991.’’ The
Union has not received any written responses to either of
these letters, nor any response at all with respect to its re-
quest for negotiations.
On December 17, Schiff telephoned Aldrich. Schiff asked
for a clarification concerning the Union’s request for an audit
of Respondent’s records. Schiff asked whether this letter re-
ferred to previous letters from various union officials con-
cerning a prior audit that had been conducted. Aldrich re-
plied that this letter had nothing to do with the prior audit,
that the Union was looking for new information which re-
lated to the negotiations. Aldrich explained to Schiff that the
Union was requesting financial records of Respondent to
show whether they were losing or making money. Schiff in-
formed Aldrich that he would reply to the Union’s request.
Schiff testified that after this conversation with Aldrich, he
was still confused about what the Union wanted and whether
the requests were related to the prior audit. Thus, he sent a
letter dated December 19, in which he asked for clarification
of the Union’s request, particularly whether the previous de-
mand referred to in Aldrich’s December 14 letter, was a re-
sponse to a letter from Michael Sackman to Respondent.
In this connection, the Union and Respondent had a series
of correspondences regarding a payroll audit of Respondent’s
records, under the contract, in order to obtain compliance
with payments to the Union’s funds. The audit was con-
ducted by the Union in June. On September 5, the Union
sent a letter signed by Michael Sackman, general president
of the Union, indicating that an audit had been conducted,
and that certain shortages had been detected, which were set
forth on an attached work sheet. The letter asked Schiff to
respond within 10 days.
Schiff sent a letter in response, dated September 12. This
letter acknowledges receipt of Sackman’s letter and asserts
that the audit and its findings were in the process of being
reviewed.
It was this September 5 letter from Sackman that Schiff
asserts he believed may have been referred to in Aldrich’s
letter of December 14. Aldrich did not respond to Schiff’s
letter of December 19, seeking clarification of Aldrich’s prior
letter.
Notwithstanding Schiff’s testimony that he was confused
about the meaning of Aldrich’s letter, even after Aldrich’s
oral clarification, Schiff concedes that Respondent has re-
fused to supply the Union financial records, because ‘‘we are
at impasse in negotiations at this point in time.’’ When asked
when Respondent came to that conclusion, Schiff responded
that because Respondent received the strike notice, and the
RD petition7 was filed, it was concluded by Respondent that
it did not have to furnish the financial records to the Union,
and that it would no longer agree to any further bargaining
sessions.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The contract provides that Respondent must promptly furnish
each month the names, home addresses, dates of hire, categories, and
wages of all new employees in the bargaining unit.
9 I note that notwithstanding the absence of a necessity for the
Union to show a need for the information, both Aldrich and Hall
testified to why the Union needed the information.
Further, Schiff admitted that the Union had, through the
mediator, asked for additional bargaining sessions, but that
Respondent declined, ‘‘because of the petition.’’ Indeed,
Schiff testified that Respondent’s attorney sent a letter to
Davis, to that effect, but this letter was not introduced into
the record herein.
While Schiff admitted that he was aware that the Union
had lifted its strike notice, he still insisted that an impasse
still existed, because of the petition.
In any event, the Respondent never responded directly to
the Union’s demand for additional negotiations, and insofar
as this record discloses, has never indicated to the Union that
it considers or considered the parties at an impasse, and
never asserted to the Union that the existence of an ‘‘im-
passe’’ was a reason for its failure to furnish records or its
refusal to attend any further bargaining sessions.
The foregoing description of the relevant events herein is
based on a compilation of the credited testimony of Hall, Al-
drich, Germana, and Schiff. Much of the testimony of the
General Counsel’s witnesses is undisputed or undenied, par-
ticularly since neither Rosen nor Schneider testified, and
Schiff’s testimony is replete with his failures to recall or re-
member details of or even the existence of some of the con-
versations related above. Insofar as there are any direct con-
tradictions between the testimony of Schiff, and the General
Counsel’s witnesses, I have generally credited the latter’s
versions, primarily because of the uncertainty and evasive-
ness of Schiff’s testimony as a whole.
IV. ANALYSIS
A. The Alleged Failure to Make Fund Contributions
The parties have all agreed that paragraph 9(b) of the
amended complaint, which alleges a failure to make fund
contributions on behalf of employees by Respondent, since
April 1990, should be deferred to the parties’ arbitration pro-
cedures. Collyer Insulated Wire, 192 NLRB 837 (1971). In
view of such agreement by all parties, I shall recommend
dismissal of this allegation of the complaint, with the stand-
ard recommendation to retain jurisdiction of this allegation,
for the limited purpose of entertaining an appropriate motion
for further consideration of these allegation.
B. The Alleged Failure to Notify the Union of Names
of New Employees
Paragraph 9(a) of the amended complaint alleges that since
April 1990, Respondent has failed to notify the Union of the
names of all new employees hired into the unit, as required
by the collective-bargaining agreement between the parties.
Respondent admitted Section 9(a) in its answer, and re-
affirmed that admission during the course of the hearing.
However, in its brief, Respondent urges for the first time that
this allegation also be deferred to the parties’ arbitration pro-
cedure, since in its view the pending arbitration on the fail-
ure to make fund payments ‘‘will clearly resolve the issue
as well.’’ I do not agree.
Initially, I would note that Respondent has made no show-
ing or introduced any evidence that the arbitration will or
even might remedy this allegation of the complaint.
More importantly, Respondent did not raise this defense in
its answer or at the hearing, and the issue was not litigated
therein. Thus, the record provides no basis for determining
whether deferral is appropriate, and Respondent’s attempt to
raise the issue in its brief to me is untimely, and must be
rejected. Southwestern Bell Telephone Co., 276 NLRB 1053,
1055 (1985); Jack Thompson Oldsmobile, 256 NLRB 24
(1981); MacDonald Engineering Co., 202 NLRB 748 (1973).
Moreover, I would also note that Respondent has admitted
in its answer that it has failed to notify the Union of new
employees as required by the contract, the provision is clear
and unambiguous8 and Respondent has not demonstrated that
a construction of the contract is necessary to evaluate the
reasons for Respondent’s noncompliance. In these cir-
cumstances, deferral to arbitration is inappropriate, even if it
had been timely raised by Respondent. Struthers Wells Corp.,
245 NLRB 1170, 1171 (1979), enfd. 636 F.2d 1210 (3d Cir.
1980); Griffith Hope Co., 275 NLRB 487, 501 (1985).
Accordingly, based on the foregoing, Respondent’s request
to defer this portion of the complaint is denied.
Since Respondent has admitted that it has since April
failed to inform the Union, as required by the contract, of
the names and addresses of new hires, its conduct in this re-
gard is clearly violative of Section 8(a)(1) and (5) of the Act.
Scott Lee Guttering Co., 295 NLRB 497 (1989); Nick
Robolitto, Inc., 292 NLRB 1279 (1989); St. Agnes Medical
Center, 287 NLRB 242, 258 (1985).
C. The Alleged Refusal to Supply Relevant Information
to the Union
It is well settled that an employer has a statutory obliga-
tion to provide a Union with relevant information that a
Union needs for the proper performance of its duties as a
collective-bargaining representative. NLRB v. Acme Indus-
trial, 385 U.S. 431 (1967). The type of information requested
by the Union herein, i.e., names, addresses, wage rates, dates
of hire, and job classifications of employees, is presump-
tively relevant to the Union’s role as bargaining agent of Re-
spondent’s employees, and no showing of particularized need
was necessary. Safelite Glass, 283 NLRB 929, 948 (1987);
15th Avenue Iron Works, 279 NLRB 643, 657 (1986);
Bozzuto’s, Inc., 275 NLRB 353 (1985).9
Indeed, Respondent does not contest the relevance of the
information requested, and its principal defense, which I have
in effect rejected above, is that the Union never made the re-
quest. As noted, I have concluded that regardless of whether
Respondent received the May 1 request sent by the Union,
that the Union made a number of oral demands on Respond-
ent’s officials in May and June, and again at the last negotia-
tion session on August 9, for the submission of the informa-
tion requested in the May 1 letter.
Respondent also argues that even if requested, the infor-
mation was adequately provided. Old Line Life Insurance, 96
NLRB 499 (1951), affd. 200 F.2d. 52 (7th Cir. 1952); Cin-
cinnati Steel, 86 NLRB 592 (1949); Albany Garage, 126
NLRB 417 (1969); California Portland Cement, 101 NLRB
1436 (1952). However, in the cases cited by Respondent, the
Employers either offered to or in fact did supply all the re-
1135HOSPITALITY CARE CENTER
10 I shall deal below with the question of whether an impasse ex-
isted as asserted by Respondent.
quested information to the Union, albeit in a different form.
That is not the case herein. Respondent relies on the audit
conducted by the Union in June in order to determine com-
pliance with the fund provisions of the contract. However,
the weekly payroll records provided to the Union’s auditors
did not contain the dates of hire, addresses of employees, or
the job classifications for all of Respondent’s employees as
requested by the Union.
Respondent also makes reference to the monthly remit-
tance reports submitted by Respondent, as well as other con-
tractual provisions which give the Union the right to demand
audits and inspections of records, and which obligate Re-
spondent to supply monthly to the Union the same informa-
tion requested by the Union herein.
However, the monthly remittance reports also did not con-
tain much of the information requested by the Union, and are
insufficient to meet Respondent’s obligations to supply cur-
rent information to the Union. Safelite Gas, supra at 948. Re-
spondent’s reliance on the clauses in the contract requiring
it to supply the Union the information requested is disingen-
uous at best, and frivolous at worst. As Respondent conven-
iently ignores, Respondent has not been complying with this
contractual obligation since April, an action which I had pre-
viously found to be violative of Section 8(a)(5) of the Act.
Respondent’s further argument that the Union’s rights
under the contract to this information, and to obtain relief by
an action for damages or arbitration, precludes the finding of
a violation, is without merit. It is clear that an Employer may
not refuse to furnish relevant information to the Union on the
grounds that the Union has an alternative source or method
of obtaining the information; Public Service Corp. of Colo-
rado, 301 NLRB 238 (1991); Washington Hospital Center,
270 NLRB 396, 401 (1984); Kroger Co., 226 NLRB 512–
514 (1976). The Union is under no obligation to utilize a
burdensome procedure (such as utilizing its rights under the
contract), of obtaining desired information where the em-
ployer may have such information available in a more con-
venient form. Kroger, supra at 513.
Accordingly, Respondent’s defenses all having been re-
jected, I conclude that Respondent has violated Section
8(a)(1) and (5) of the Act by failing to provide to the Union
relevant information.
D. The Alleged Failure to Supply Financial Records
It is well established, and not disputed by Respondent, that
where an employer, either in response to bargaining demands
from the Union, or in support of its proposals, makes a claim
of inability to pay, the employer is required to provide, on
request, financial information to the Union to substantiate its
claim. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
Clemson Bros., Inc., 290 NLRB 944 (1988).
Respondent does not contest and I find that it clearly
pleaded an inability to pay in connection with its refusal to
accept the Union’s demands and in support of its own pro-
posal for a wage freeze and other contractual relief for new
hires.
Respondent raises a number of defenses to its refusal to
supply such financial information to the Union, all of which
singly or collectively are without merit. Respondent initially
points to the fact that it, through its attorney, offered the
Union the opportunity to inspect its records at the August 9
meeting, even prior to the Union’s request. However, this
fact provides no solace for Respondent, since when the
Union subsequently requested the information, both orally
and in writing, in effect accepting Respondent’s offer, Re-
spondent refused to comply.
Respondent also argues that it was confused by Aldrich’s
December letter requesting the records, and that it did not
know whether the Union was referring to the previous audit
conducted by the Union or a different demand for financial
records. I find Schiff’s testimony in this regard to be uncon-
vincing, particularly in view of Aldrich’s unequivocal expla-
nation to Schiff that his present demand for financial records
was clearly different in purpose and nature from the previous
audit. In any event, regardless of any alleged confusion from
Aldrich’s December letter, or his failure to respond to
Schiff’s written request for further clarification, in fact Schiff
conceded that Respondent was aware that the Union was
seeking financial records and that Respondent had decided
not to turn them over.
This brings me to Respondent’s principal and most strong-
ly argued defense, that the parties were at impasse after the
August 9 meeting. Thus, Respondent contends that once at
impasse exists, the duty to bargain with the Union, including
the obligation to turn over information or financial records
is suspended. Respondent has cited no case in support of this
rather novel proposition of law, and in my view the assertion
is incorrect. While a genuine impasse may relieve an em-
ployer of the obligation to bargain with the union about the
subject matter of the impasse, Providence Medical Center,
243 NLRB 714 (1929), or even to meet further with the
union, Civic Motor Inns, 300 NLRB 774 (1990), unless
changed circumstances indicate that future bargaining may be
fruitful, the obligation to supply relevant information is not
affected. Indeed, such a result would be contrary to the ra-
tionale of the foregoing cases. Thus, an impasse if it exists,
can only be broken by a changed circumstance indicating
that there may be a change of position by either party. The
receipt and review of the financial records by the Union,
could very well convince the Union that Respondent’s pleas
of poverty were valid, and persuade it to lower its demands
or agree to Respondent’s proposal of a freeze.
Accordingly, I reject Respondent’s contention that even if
impasse existed on August 9,10 as it contends, its obligation
to furnish financial records is suspended. Therefore, I find
that its failure to turn over these records is violative of Sec-
tion 8(a)(1) and (5) of the Act.
E. The Refusal to Meet
There is no dispute but that Respondent after the August
9 meeting refused to meet or attend any further bargaining
sessions with the Union. Respondent, as noted, asserts that
an impasse was reached in bargaining by the close of that
session, over the issue of Respondent’s alleged insistence on
a 1 year freeze, thereby permitting Respondent to refuse to
meet and bargain with the Union, unless the Union gave
some indication of flexibility on that issue.
However, it is well settled that a failure to supply informa-
tion relevant and necessary for bargaining constitutes a fail-
ure to bargain in good faith and precludes a finding of a gen-
uine impasse. Pertec Computer Co., 288 NLRB 810 (1987);
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 In view of these findings, I find it unnecessary to decide wheth-
er Respondent would have established the existence of an impasse
under the criteria of Taft Broadcasting Co., 163 NLRB 475, 478
(1967), affd. 395 F.2d 622 (D.C. Cir. 1968), absent its bad-faith re-
fusals to supply information. However, I would observe that it is
doubtful that Respondent has met even that burden, in view of the
Union’s actions in modifying its proposals, indicating a willingness
to compromise, Union Terminal Warehouse, 286 NLRB 851, 858
(1987), the relatively limited discussions at only three bargaining
sessions, Powell Electrical Mfg. Co., 287 NLRB 969 (1987), Ste-
phenson-Yost Steel, 294 NLRB 395 (1989), the willingness of the
Union to utilize the services of a mediator, Powell, supra, and the
fact that at no time did either party indicate that it felt the parties
were at impasse or that no further bargaining would be fruitful. Huck
Mfg. v. NLRB, 693 F.2d 1176, 1186 (5th Cir. 1983).
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
Cowin & Co., 277 NLRB 802, 817 (1985). Here I have con-
cluded that Respondent failed and refused to comply with the
Union’s request for relevant information made in its numer-
ous requests in May and June, and most significantly re-
peated and again refused by Respondent at the August 9
meeting, after which Respondent contends the impasse ex-
isted. Therefore, no valid impasse was reached at that or any
other time, and Respondent was obligated to continue bar-
gaining.
I would also note Respondent’s refusal to supply its finan-
cial records to substantiate its inability to pay, which I have
also found to be violative of Section 8(a)(1) and (5) of the
Act. While Respondent is correct in observing that these re-
quests and refusals occurred after the August 9 meeting,
when Respondent asserts that the impasse was reached, this
fact does not prevent the consideration of the unlawful re-
fusal in assessing the lawfulness of its refusal to meet with
the Union. Respondent’s refusal to supply the records to sub-
stantiate its claims of financial distress, prevented the Union
from authenticating these claims, and seriously diminished
the chances of breaking any ‘‘alleged’’ impasse that may
have existed. Therefore, in my view, Respondent cannot rely
on the existence of an impasse to justify refusing to meet
further, while at the same time deny the Union an oppor-
tunity to inspect records which could very well convince the
Union that a change in its position might be warranted.
Finally, I am also not convinced that Respondent’s refusal
to meet further was motivated by its alleged belief that an
impasse had been reached in bargaining. Schiff testified that
Respondent came to that conclusion that an impasse existed
because of the filing of the petition, plus the Union’s strike
notice. When it was pointed out that the strike notice had
been lifted, Schiff relied exclusively on the existence of the
petition as a justification for its assertion of the existence of
an impasse. Further, when the Union asked for additional
sessions, Respondent refused, solely on the grounds of the
petition. It is highly significant, that at no time did the Re-
spondent ever make the assertion either to the Union or to
the mediator that it believed that an impasse had been
reached, or that the existence of an impasse was responsible
for Respondent’s decision not to continue bargaining.
In these circumstances, I am not persuaded that Respond-
ent has met its burden of demonstrating that the alleged ex-
istence of an impasse motivated its decision to refuse to meet
with the Union. On the contrary, it appears that its actions
were motivated primarily by the filing of the RD petition.
This conclusion is fortified by Schiff’s testimony in this re-
gard that, ‘‘there might be an election.’’
It is of course clear that the filing of a decertification peti-
tion, standing alone, is not a sufficient basis to refuse to meet
with the Union. Champ Corp., 291 NLRB 803, 877 (1988);
Dresser Industries, 264 NLRB 1088, 1089 (1982).
Accordingly, based on the foregoing analysis, I conclude
that Respondent has not demonstrated either the existence of
a valid impasse or that it relied on such an impasse in its
decision to refuse to meet further with the Union. Therefore,
Respondent has violated Section 8(a)(1) and (5) of the Act
by engaging in such conduct. I so find.11
V. THE REMEDY
Having found that Respondent has violated Section 8(a)(1)
and (5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion necessary to effectuate the purposes and policies of the
Act.
CONCLUSIONS OF LAW
1. The Respondent, New Associates d/b/a Hospitality Care
Center, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and a health
care institution within the meaning of Section 2(14) of the
Act.
2. The Union, 115 Nursing Home and Hospital Employees
Union, a Division of 1115 Joint Board, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. At all times material, the Union has been and continues
to be the exclusive representative of the employees of Re-
spondent for the purposes of collective bargaining under Sec-
tion 9(a) of the Act, in the following appropriate unit:
All employees excluding registered nurses, supervisors,
watchmen, office employees, clerical workers, first
cooks, dieticians, telephone operators, professional em-
ployees, guards and recreational employees.
4. By failing, since April 1990, to notify the Union of the
names of all new employees hired into the unit, as required
by the collective-bargaining agreement between the parties,
Respondent has violated Section 8(a)(1) and (5) of the Act.
5. By refusing on and after May 1, 1990, to furnish the
Union relevant information, Respondent has violated Section
8(a)(1) and (5) of the Act.
6. By failing and refusing on and after September 1990,
to permit an audit of its financial records, and to supply in-
formation related thereto Respondent has violated Section
8(a)(1) and (5) of the Act.
7. By failing and refusing to meet and bargain with the
Union since September 1990, Respondent violated Section
8(a)(1) and (5) of the Act.
8. The allegations in the complaint with respect to Re-
spondent’s failure to make contributions to the Union’s funds
shall be deferred to the parties’ arbitration procedures.
9. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
1137HOSPITALITY CARE CENTER
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 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.’’
ORDER
The Respondent, New Associates d/b/a Hospitality Care
Center, Newark, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by fail-
ing and refusing to notify the Union of the names of all new
employees hired into the unit, as required by the collective-
bargaining agreement between the parties.
(b) Refusing to bargain collectively with the Union by fail-
ing to refuse to supply the Union with information relevant
and necessary to collective-bargaining or failing and refusing
to permit the Union to audit its financial records, in order
to substantiate Respondent’s claim of inability to pay.
(c) Refusing to meet and bargain with the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish the Union with the names of all
new employees hired into the unit since April 1990.
(b) On request, furnish the Union with an up-to-date list
of all employees in the unit, along with their current home
addresses, dates of hire, categories, and wage rates.
(c) On request, furnish the Union Respondent’s audited fi-
nancial statements and permit the Union to conduct an audit
of its financial records in order to verify Respondent’s claim
of inability to pay.
(d) On request, meet and bargain with the Union in good
faith and, if an understanding is reached, embody such an
understanding in a written agreement.
(e) Post at its facility located in Newark, New Jersey, cop-
ies of the attached notice marked ‘‘Appendix.’’13 Copies of
the notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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 notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ALSO ORDERED that the allegations in the complaint
pertaining to the Respondent’s failure to make fund contribu-
tions on behalf of certain employees, shall be dismissed: ju-
risdiction of these allegations is hereby retained for the lim-
ited purpose of entertaining an appropriate and timely motion
for further consideration on a proper showing that either (a)
the dispute has not, with reasonable promptness after the
issuance of the Decision and Order, either been resolved by
amicable settlement in the grievance procedure or submitted
promptly to arbitration, or (b) the grievance or arbitration
procedures have not been fair and regular or have reached
a result which is repugnant to the Act.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
Union by failing and refusing to notify the Union of the
names of all new employees hired into the unit, as required
by the collective-bargaining agreement between us and the
Union.
WE WILL NOT refuse to bargain collectively with the
Union by failing or refusing to supply the Union with infor-
mation relevant and necessary to collective bargaining or by
failing and refusing to permit the Union to audit our financial
records, in order to substantiate our claim of inability to pay.
WE WILL NOT refuse to meet and bargain with the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, furnish the Union with the names
of all new employees hired into the unit since April 1990.
WE WILL, on request, furnish the Union with an up-to-date
list of all employees in the unit, along with their current
home addresses, dates of hire, categories, and wage rates.
WE WILL, on request, furnish the Union our audited finan-
cial statements and permit the Union to conduct an audit of
our financial records in order to verify our claim of inability
to pay.
WE WILL, on request, meet and bargain with the Union in
good faith and, if an understanding is reached, embody such
an understanding in a written agreement.
NEW ASSOCIATES D/B/A HOSPITALITY
CARE CENTER