Pontiac Nursing Home, LLC

National Labor Relations Board - Board Decisions

Feb 28, 2005

344 N.L.R.B. 31 (N.L.R.B. 2005)

344 NLRB No. 31
Pontiac Nursing Home, LLC and 1199 New York’s
Health and Human Service Union, SEIU, AFL–
CIO, CLC.1 Case 3–CA–25111
February 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge and first amended charge filed
on October 18 and November 15, 2004, respectively, the
General Counsel issued the amended complaint on De-
cember 7, 2004, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain and to provide information
following the Union’s certification in Case 3-RC-11422.
(Official notice is taken of the “record” in the representa-
tion 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 allegations in
the amended complaint.
On December 27, 2004, the General Counsel filed a
Motion for Summary Judgment. On January 6, 2005, 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.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
furnish information that is alleged to be relevant and
necessary to the Union’s role as bargaining representa-
tive, but contests the validity of the certification based on
its objection to the election in the representation proceed-
ing.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no genuine issues of mate-
rial fact warranting a hearing regarding the Union’s re-

1 The name of the Charging Party is corrected as set forth in item 1
of the General Counsel’s motion.
quest for information. The complaint alleges, and the
Respondent’s answer admits, that the Union requested
the following information from the Respondent by letter
dated September 28, 2004:
1. A list of all bargaining unit members by work
unit/department and seniority including:
a. name;
b. address;
c. phone number;
d. job classification;
e. work unit/department;
f. date of hire;
g. occupational seniority;
h. wage rate;
i. full-time, part-time or per diem status (with re-
spect to part-timers, the pro-rata formula or number
of hours worked weekly); and
j. shift.
2. Total payroll for bargaining unit members for the last
complete fiscal year.
3. Average weighted hourly wage rate for the bargain-
ing unit.
4. Percentage paid by the Respondent for roll-up cost
for bargaining unit members.
5. Total number of straight-time hours paid for the last
complete fiscal year.
6.Total number of overtime hours paid for the last
complete fiscal year.
7. Total amount paid for shift differential in the last
complete fiscal year.
8. A list of health insurance plans available to bargain-
ing unit members and a copy of each plan summary
along with the following information:
a. number of bargaining unit members currently
covered by each plan, specifying individual or fam-
ily coverage;
b. current total monthly premium cost for each
plan;
c. current monthly amount paid for by the Re-
spondent;
d. current monthly amount paid for by the bar-
gaining unit member; and
e. expected premium cost increase for the next
relevant (fiscal or calendar) year.
9. A list of dental insurance plans available to bargain-
ing unit members and a copy of each plan summary
along with the following information:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
a. number of bargaining unit members currently
covered by each plan (identify individual or family
coverage);
b. current total monthly premium cost for each
plan;
c. current monthly amount paid for by the Re-
spondent;
d. current monthly amount paid for by the bar-
gaining unit member; and
e. expected premium cost increase for the next
relevant (fiscal or calendar) year.
10. Total amount paid for life insurance for bargaining
unit members in the last complete fiscal year along
with a copy of the plan summary and a list of names of
those members covered.
11. Total amount paid for educational assistance for
bargaining unit members in the last complete fiscal
year along with a list of names of those members pro-
vided such assistance.
12. Total number of times in the last complete fiscal
year that bargaining unit members were forced or
“mandated” to work overtime, by shift.
13. A copy of the job description for each job covered
by the collective bargaining agreement.
14. Summary plan description of the pension plan
along with copies of the Form 5500 for the latest pen-
sion plan year of the tax-qualified pension plan.
Although the Respondent’s answer denies that the in-
formation requested is necessary and relevant to the Un-
ion’s duties as the exclusive bargaining representative of
the unit employees, it is well established that all of the
foregoing types of information are presumptively rele-
vant for purposes of collective bargaining and must be
furnished on request.2 See, e.g., Cheboygan Health Care
Center, 338 NLRB 802 (2003) and cases cited therein.
The Respondent has not asserted any basis for rebutting
the presumptive relevance of the information, apart from
its contention, rejected above, that the Union’s certifica-
tion is invalid.
Accordingly, we grant the Motion for Summary
Judgment,3 and will order the Respondent to bargain and
to furnish the requested information to the Union.

2 The Union requested two types of information in its September 28,
2004 letter: “Bargaining Unit Information” and “Facility Information.”
The refusal-to-furnish-information allegation of the amended complaint
is expressly limited to the information classified by the Union as “Bar-
gaining Unit Information.” The requested “Bargaining Unit Informa-
tion,” which is listed above, relates solely to unit employees.
3 The Respondent’s requests that the amended complaint be dis-
missed and that it recover costs and attorneys’ fees are therefore denied.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business located in Oswego,
New York (the Respondent’s Oswego, New York facil-
ity), has been engaged in the operation of a nursing
home.
Annually, the Respondent, in conducting its business
operations described above, derives gross revenues in
excess of $100,000 and purchases and receives at its
Oswego, New York facility goods and materials valued
in excess of $5000 directly from points located 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 the election held on April 15, 2004, the Un-
ion was certified on September 17, 2004, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time licensed practical
nurses, graduate practical nurses, certified nurse assis-
tants, recreation aides, unit clerks, receptionists, unit
aides, bakers, dietary aides, cooks, mainte-
nance/grounds employees, housekeepers and laundry
employees employed by the Respondent at its Oswego,
New York facility; excluding confidential employees,
guards, registered nurses, graduate registered nurses,
and all other professional employees and unit manag-
ers, and all other supervisors as defined in the Act, and
all other employees.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about September 28, 2004, the Union has
requested the Respondent to bargain and to furnish in-
formation, and, since on or about October 18, 2004, the
Respondent has failed and refused. We find that the Re-

Member Schaumber did not participate in the underlying representa-
tion proceeding. He agrees, however, that the Respondent has not
raised any new matters or special circumstances warranting a hearing in
this proceeding or reconsideration of the decision in the representation
proceeding, and that summary judgment is therefore appropriate.
PONTIAC NURSING HOME, LLC 3
spondent’s conduct constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after October 18, 2004, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and to
furnish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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 Respon-
dent 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 the law, we shall construe the initial period of the cer-
tification 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).
ORDER
The National Labor Relations Board orders that the
Respondent, Pontiac Nursing Home, LLC, Oswego, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199 New York’s Health
and Human Service Union, SEIU, AFL–CIO, CLC, as
the exclusive bargaining representative of the employees
in the bargaining unit, and refusing to furnish the Union
information 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, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time licensed practical
nurses, graduate practical nurses, certified nurse assis-
tants, recreation aides, unit clerks, receptionists, unit
aides, bakers, dietary aides, cooks, mainte-
nance/grounds employees, housekeepers and laundry
employees employed by the Respondent at its Oswego,
New York facility; excluding confidential employees,
guards, registered nurses, graduate registered nurses,
and all other professional employees and unit manag-
ers, and all other supervisors as defined in the Act, and
all other employees.
(b) Furnish the Union with the information listed as
“Bargaining Unit Information” items 1–14 in the Union’s
letter dated September 28, 2004.
(c) Within 14 days after service by the Region, post at
its facility in Oswego, New York, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since October 18, 2004.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 had found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with 1199 New York’s
Health and Human Service Union, SEIU, AFL–CIO,
CLC, as the exclusive representative of the employees in
the bargaining unit, and WE WILL NOT refuse to furnish
the Union information that is relevant and necessary to
its role as the exclusive bargaining representative of the
unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit:
All full-time and regular part-time licensed practical
nurses, graduate practical nurses, certified nurse assis-
tants, recreation aides, unit clerks, receptionists, unit
aides, bakers, dietary aides, cooks, mainte-
nance/grounds employees, housekeepers and laundry
employees employed by us at our Oswego, New York
facility; excluding confidential employees, guards, reg-
istered nurses, graduate registered nurses, and all other
professional employees and unit managers, and all
other supervisors as defined in the Act, and all other
employees.
WE WILL furnish the Union with the information listed
as “Bargaining Unit Information” items 1–14 in the Un-
ion’s letter dated September 28, 2004.
PONTIAC NURSING HOME, LLC