People Care, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1994

314 N.L.R.B. 1188 (N.L.R.B. 1994)

1188
314 NLRB No. 190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although the Respondent denies par. 2(a) of the complaint,
which describes the nature of the Respondent’s business, the Re-
spondent stipulated to that description in the underlying representa-
tion case. Accordingly, and as the Respondent admits the remaining
jurisdictional allegations in the complaint, in agreement with the
General Counsel, we find that the Respondent’s denial does not raise
any jurisdictional issue warranting a hearing in this proceeding.
2 See Biewer Wisconsin Sawmill, 306 NLRB 732 (1992). In this
regard, we reject as immaterial the Respondent’s contention that the
Union was dilatory in seeking bargaining. Even assuming arguendo
that this were true, it is clear, based on the Respondent’s correspond-
ence to the Region, that the Respondent would have refused to bar-
gain in any event in order to test the Union’s certification. Cf. Walt
Disney World Dolphin Hotel, 314 NLRB 154 fn. 1 (1994).
3 The complaint alleges that by letter dated February 17, 1994, the
Union requested the following information from the Respondent:
1. The names and addresses of each current employee and his/her
title and current assignment, date of first employment, number of
years with the agency, and date of birth. The latter information is
particularly important to pension coverage questions.
2. The wages being paid to each of the present employees.
3. A description of all benefits provided to employees, including
but not limited to pension, health insurance, life insurance, vacations,
holidays, sick leave, other leave policies and copies of any benefit
plans, summary plan descriptions, or other documents describing
such benefits.
4. Any employee manuals or memoranda describing work require-
ments or personnel practices affecting employees in the bargaining
unit.
5. A description of the procedure by which employees are selected
for assignment to particular cases (clients) and a listing of all such
assignments made within the last 6 months showing the name of the
employee assigned, the name of the client and the date of the assign-
ment, and the reason for her selection for that assignment.
People Care, Incorporated and 1199 National
Health and Human Service Employees’ Union.
Case 2–CA–27207
September 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On June 22, 1994, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
and to furnish relevant and necessary information fol-
lowing the Union’s certification in Case 2–RC–21209.
(Official notice is taken of the ‘‘record’’ in the rep-
resentation proceeding as defined in the Board’s Rules
and Regulations, Secs. 102.68 and 102.69(g); Frontier
Hotel, 265 NLRB 343 (1982).) The Respondent filed
an answer admitting in part and denying in part the al-
legations in the complaint.
Thereafter, on July 25, 1994, the General Counsel
filed a Petition for Summary Judgment and Issuance of
Decision and Order and Motion to Strike Parts of Re-
spondent’s Answer and Memorandum in Support, with
exhibits attached. On July 28, 1994, the Board issued
an order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should not be
granted. On August 26, 1994, the Respondent filed a
response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits the jurisdic-
tional allegations of the complaint,1 but denies all the
remaining allegations, including that the unit is appro-
priate, that the Union was certified as and is the exclu-
sive bargaining representative of the unit, that the
Union has requested the Respondent to bargain and to
furnish relevant and necessary information, and that
the Respondent has refused to do so.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
As indicated, the Respondent’s answer also denies
the allegations in the complaint relating to the Re-
spondent’s refusal to meet and bargain with the Union.
However, we find that those denials also do not raise
any issue warranting a hearing in this proceeding. The
complaint’s allegations in this regard are fully sup-
ported by various letters from the Union to the Re-
spondent requesting bargaining and from the Respond-
ent to the Region indicating that the Respondent in-
tended to test the Union’s certification in the court of
appeals, all of which are attached as exhibits to the
General Counsel’s motion. The Respondent has not
disputed the authenticity of that correspondence in re-
sponse to the Notice to Show Cause. We therefore
find, based on these letters, that the Union requested
the Respondent to bargain and that the Respondent is
refusing to do so.2
However, in agreement with the Respondent, we
find that material issues of fact are raised with respect
to the allegations in the complaint regarding the Re-
spondent’s failure to provide requested information.3 In
letters to the Region and the Union dated May 23 and
June 14, 1994, respectively, and again in its response
to the Notice to Show Cause, the Respondent has con-
tended, inter alia, that most if not all the information
has already been provided to the Union in the rep-
resentation proceeding, and that, to the extent the
1189PEOPLE CARE, INC.
4 In view of our grant of the Petition for Summary Judgment in
this respect, we find it unnecessary to pass on the General Counsel’s
motion to strike parts of the Respondent’s answer.
Union requests the names of home care clients to
which employees have been assigned, such work as-
signment information is confidential and could not be
provided in any event. Thus, as there appears to be
material issues of fact with respect to whether the Re-
spondent has unlawfully failed to provide the Union
with some or all of the requested information, we shall
deny the General Counsel’s Motion for Summary
Judgment with respect to the refusal-to-provide-infor-
mation allegations, and remand those allegations for
further appropriate action.
However, as it is clear, as found above, that the Re-
spondent is refusing to bargain generally in order to
contest the Union’s certification, we find that it would
effectuate the purposes and policies of the Act to grant
summary judgment with respect to the refusal-to-bar-
gain allegation of the complaint. Accordingly, we grant
the Petition for Summary Judgment with respect to
that allegation.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a New York
corporation, with its principal place of business located
at 500 Eighth Avenue, New York, New York, has
been engaged in the business of providing house-
keeping services to various disabled and elderly indi-
viduals. Annually, the Respondent, in the course and
conduct of its business operations, derives gross reve-
nues in excess of $500,000 and purchases and receives
at its facility products, goods, and materials valued in
excess of $25,000 directly from points outside the
State of New York. 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 a mail-ballot election counted on July 6,
1993, the Union was certified on September 24, 1993,
as the collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time home health
care workers employed by the Employer, includ-
ing certified home health aides, personal care
aides, quality compliance technicians, junior aides
and housekeepers employed by the Employer out
of its facility located at 500 Eighth Avenue, New
York, New York, excluding all other employees,
including registered nurses, licensed practical
nurses, office clericals and professional employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On or about November 30, 1993, and January 3 and
February 15, 1994, the Union, by letter, requested the
Respondent to bargain. Since on or about November
30, 1993, the Respondent has failed and refused to
meet and bargain with the Union. We find that this re-
fusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after November 30, 1993, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, People Care, Incorporated, New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with 1199 National Health
and Human Service Employees’ Union as the exclu-
sive bargaining representative of the employees in the
bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time home health
care workers employed by the Employer, includ-
ing certified home health aides, personal care
aides, quality compliance technicians, junior aides
and housekeepers employed by the Employer out
of its facility located at 500 Eighth Avenue, New
York, New York, excluding all other employees,
including registered nurses, licensed practical
nurses, office clericals and professional employ-
ees, guards and supervisors as defined in the Act.
(b) Post at its facility in New York, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the allegations in the
complaint regarding the Respondent’s refusal to pro-
vide information to the Union are remanded to the Re-
gional Director for further appropriate action.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1199 National
Health and Human Service Employees’ Union as the
exclusive representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time home health
care workers employed by us, including certified
home health aides, personal care aides, quality
compliance technicians, junior aides and house-
keepers employed by us out of our facility located
at 500 Eighth Avenue, New York, New York, ex-
cluding all other employees, including registered
nurses, licensed practical nurses, office clericals
and professional employees, guards and super-
visors as defined in the Act.
PEOPLE CARE, INCORPORATED