Lake Holiday Manor

National Labor Relations Board - Board Decisions

Jul 14, 1989

295 N.L.R.B. 992 (N.L.R.B. 1989)

992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lake Holiday Associates, Inc. d/b/a Lake Holiday
Manor and 1199 Indiana, National Union of
Hospital & Health Care Employees , AFL-CIO.
Case 25-CA-19429
July 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 30, 1988, the General Counsel of the
National Labor Relations Board issued a complaint
and notice of hearing alleging that the Respondent
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act by refusing the Union's re-
quest to bargain and to furnish information follow-
ing the Union 's certification in Case 25-RC-8392.1
(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 Re-
spondent filed its answer admitting in part and de-
nying in part the allegations in the complaint.
On December 13, 1988, the General Counsel
filed a motion to strike portions of the Respond-
ent's answer and a Motion for Summary Judgment.
On December 19, 1988 , the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not
be granted . The Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer and response , the Respondent
admits its refusal to bargain and that it has refused
to furnish information requested by the Union, but
attacks the validity of the Union 's certification on
the basis of its objections to the election in the rep-
resentation proceeding.2
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding . The Respondent does
not offer to adduce at a hearing any newly discov-
' Subsequently, the Regional Director filed an amended complaint on
October 3 , 1988, and a second amended complaint on November 22,
1988, to which the Respondent filed timely answers.
2 The Respondent has filed a motion to include record or to stoke the
General Counsel 's Motion for Summary Judgment in which it contends
that the denial of its request to obtain the tapes of the underlying repre-
sentation hearing has prevented it from supporting its claim of the hear-
ing officer's antagonistic conduct towards its witnesses . Although the Re-
spondent 's request for the tapes is being raised before the Board for the
first time , its exceptions to the hearing officer 's rulings and findings were
raised before the Board in the representation proceeding. The Board's de-
cision in the representation proceeding included a complete examination
of the entire record and found the Respondent 's exceptions to be without
merit. Accordingly , the motion is denied.
ered and previously unavailable evidence , nor does
it allege any special circumstances that would re-
quire the Board to reexamine the decision made in
the representation proceeding . We therefore find
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding . See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac-
cordingly , we grant the Motion for Summary
Judgment.3
On the entire record , the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent has maintained its principal
office and place of business at DeMotte , Indiana,
and has been, at all times material, engaged at that
location in providing residential health care and re-
lated services . During the 12-month period ending
December 31, 1987 , the Respondent , in the course
and conduct of its business operations , derived at
its DeMotte, Indiana facility revenues in excess of
$50,000 from medicaid payments from the U.S.
Government and derived gross annual revenues in
excess of $1 million . We find that the Respondent
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and a
health care institution within the meaning of Sec-
tion 2(14) of the Act. We further find 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 election held on December 3,
1986, the Union was certified on April 13, 1988, as
the collective-bargaining representative of the em-
ployees in the following appropriate unit:
All service and maintenance employees of the
Employer at its DeMotte, Indiana facility;
BUT EXCLUDING all office clerical employ-
ees, all LPNs , all professional employees, and
all guards and supervisors as defined in the
Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
8 In view of our decision on Motion for Summary Judgment, we find it
unnecessary to rule on the General Counsel 's motion to strike portions of
the Respondent's answer to complaint.
295 NLRB No. 108
LAKE HOLIDAY MANOR 993
B. Refusals to Bargain
Since April 19, 1988, the Union has requested
the Respondent to bargain and to furnish wage and
employment information, and since April 19, 1988,
the Respondent has refused. We find that these re-
fusals constitute unlawful refusals to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on or after April 19, 1988, to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit and to furnish the Union requested informa-
tion, 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
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 also shall order the Respondent to furnish the
Union the information requested.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All service and maintenance employees of the
Employer at its DeMotte, Indiana facility;
BUT EXCLUDING all office clerical employ-
ees, all LPNs, all professional employees and
all guards and supervisors as defined in the
Act.
(b) On request, furnish the Union information
that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit em-
ployees.
(c) Post at its facility in DeMotte, Indiana, copies
of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
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.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 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 Nation-
al 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 National Labor Relations Board orders that
the Respondent, Lake Holiday Associates, Inc.
d/b/a Lake Holiday Manor, DeMotte, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199 Indiana, Na-
tional Union of Hospital & Health Care Employ-
ees, AFL-CIO as the exclusive collective-bargain-
ing representative of the employees in the bargain-
ing unit, and refusing to furnish the Union informa-
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1199 Indi-
ana, National Union of Hospital and Health Care
Employees, AFL-CIO as the exclusive representa-
tive of the employees in the bargaining unit, and
WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
exclusive bargaining representative of the unit em-
ployees.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise 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 service and maintenance employees of the
Employer at its DeMotte , Indiana facility; but
excluding all office clerical employees, all
LPNs, all professional employees and all
guards and supervisors as defined in the Act.
WE WILL , on request , furnish the Union informa-
tion that is relevant and necessary to its role as the
exclusive bargaining representative of the unit em-
ployees.
LAKE HOLIDAY ASSOCIATES, INC.
D/B/A LAKE HOLIDAY MANOR