Wellington Hall Nursing Home

National Labor Relations Board - Board Decisions

Feb 7, 1979

240 N.L.R.B. 639 (N.L.R.B. 1979)

WELLINGTON HALL NURSING HOME 639
Wellington Hall Nursing Home, Inc. and Local 1115,
Joint Board Nursing Home and Hospital EmploNees
Division. Case 22-CA 7619
February 7. 1979
DECISION AND ORDER
BY, CHAIRMA1N FNNIN(; AND ME ,B IRS J NKINS
ANI) Ptl(iI It)
On October 17. 1978, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National I.ahor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and herebN
orders that the Respondent. Wellington Hall Nursing
Home, Inc., Hackensack. New Jersey, its officers.
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
We find no merit In Respondent's coltentlion that it is enitled to
hearing de novo because the Adminlstraie l.as Judge who con.ducted the
hearing died before she could issue her D)eclslon. he Chief Adiliiiatr.lse
Law Judge's action in assigning his case to nuother Administralnie lai
Judge for purposes of issuing a Decision Aas a proper exercise of his discre-
lion when. as here, there is no conflict in the tesllmons and no credbillts
resolutions are necessary
DECISION
STAIEMENT OF THE CASE
THOMAS A. RI(wl.C Administrative Law Judge: A hearing
in this proceeding was held on August 22, 1977, at Newark.
New Jersey, on complaint of the General Counsel against
Wellington Hall Nursing Home, Inc., here called the Re-
spondent or the Company.' The complaint issued on May
IThe hearing was held before Administrative l.aw Judge Anne S Schlez-
inger: she died hefore issuing a decision On October 4. 1978. the Board',
Chief Administrative l.aw Judge ordered that I he suhtililed for Adninis-
240 NLRB No. 93
26, 1977. upon a charge filed bh Local 115 Is Joint Board
Nursing Home and Hospital Employees Division, here
called the Union, on April 22. 1977. The issue presented is
whether the Respondent violated Section 8Xa)(5) of the
Act refusal to bargain-when it refused, at the Union's
request. to furnish information concerning the emplobees
included in the bargaining unit. Briefs were filed after the
close of the hearing by all parties.
Upon the entire record, and from ms observation of the
witnesses. I make the following:
:[INDl(iS ()OI FA( I
I THE B SIN SS OI Tt Il RSPONI) N I
The Respondent maintains its place of business in tlack-
ensack, New Jersey. where it is engaged in the business of
providing and performing health care services and related
services. In the course of its business during the preceding
12 months, a representative period, the Respondent re-
ceived gross revenues valued in excess of $100,000 and re-
ceived goods valued in excess of $5,.000 which were trans-
ported to its place of business in interstate commerce
directly from out-of-state sources. I find that the Respon-
dent is engaged in commerce within the meaning of the
Act.
II THF IABOR ORGANIZATION INVOI lED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III TF N IR ABOR PIRA( I IIS
A. The Question Presented
This is another case where an employer. on request. re-
fused to divulge, to the Board-certified exclusive bargain-
ing agent of its total employment complement. the address-
es of the individual employees. It has long been held by the
Board, with court agreement. that such information is rele-
vant to the collective-bargaining process; indeed it is nec-
essary if the bargaining agent is to fulfill its overall repre-
sentative status under the statute. "The kind of information
requested by the union in this case has an even more fun-
damental relevance than that considered presumptively rel-
evant." The Prudential Insurance Compane of Almerica v.
N. L.R.B.,412 F.2d 77, 84 (2d Cir. 1969), enfd. 173 NLRB
792 (1968). Situations vary from case to case, and a diver-
sity of tangential matters have been considered from time
to time. Indeed there have been special circumstances
where, the relevancy of the information notwithstanding. it
has been held that it need not be supplied to the union by
the employer. W.L. McKnight, d,{b/a Webster Outdoor .4d-
vertising Company. 170 NLRB 1395 (1968).
Here too, the employer advances an affirmative defense,
or a special legal argument, tojustify its refusal. The ques-
tion of the case at bar must therefore be understood in its
iratlse Judge Schlezinell r for prposes of lUingll .i declsiolll o I t the csting
record I here is no confliet i the oral testinilonl aud n1o ,ccaiosin for ilak-
in ans credlbhilis restliltlOI/Ts
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very exact nature. And because the Respondent seeks ex-
culpation for a very special reason, the precise issue is best
seen as it is stated by the Respondent itself. The opening
statement in its brief reads:
Question at Issue
Was it an unfair labor practice for the Employer to
refuse to present employee addresses to the union af-
ter being presented with a petition signed by a clear
majority of the employees which specifically and di-
rectly requested that those addresses not be given to
the Union?
Two concepts are blurred in this statement, as in fact
they were intermixed by counsel for the Respondent at the
hearing. Is it the fact that named employees express a de-
sire that their addresses not be furnished the union that
permits the employer's refusal? If that be so, the employer
could honor such a request by only one, or two, or ten, or
more than half of his employees, and the number of such
apparent dissidents would have nothing to do with the
merits of the asserted defense. In fact, on such a theory,
there could be no defense to the refusal by the employer to
furnish the addresses of those employees who did not re-
quest secrecy. Here the employer refused to furnish any
addresses. Or is it, as the Company brief phrases its de-
fense, the fact that "a majority" of the employees repre-
sented by the Union signed a petition asking the employer
to withhold the information that excuses the refusal? In
that event the defense crumbles before the stone wall of
Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954). If, during the
certification year, an out-and-out petition rejecting union
representation altogether, signed by an absolute majority,
can in no event constitute a defense to any kind of an
8(a)(5) violation, certainly no milder indication of disaffec-
tion could excuse a refusal to bargain at all.
B. The Pertinent Facts
It is a long story, starting in April 1975, when the Union
filed a petition with the Board for an election; there were
then about 100 employees in the unit. The election took
place on June 25 that year, and the vote was 28 for and 32
against the Union. The Union filed objections, contending
management representatives had done things which im-
properly interfered with a fair election; there were also
some challenged ballots. The Regional Director in due
course investigated everything; he resolved the challenges
and decided there should be a formal hearing about the
alleged preelection misconduct by the supervisory agents.
His decision issued on October 24, 1975. From him the
matter went to the Board, which agreed to open the chal-
lenged ballots and hold the hearing if necessary. The chal-
lenged ballots did not resolve the election, a formal hearing
had to be held, and, finally, on April 9, 1976, a hearing
officer issued a decision setting aside the results of the elec-
tion because of the Respondent's improper interference.
Another month passed, the Board agreed in May that a
new election was warranted, and it was held on June 2.
1976.
This time the Union won-40 to 24. Now the Company
filed objections, saying the Union had misbehaved and im-
properly influenced the employees. Again there had to be
an investigation. This time the Regional Director found
that there was no merit in the Company's position and that
the results of the election should be honored. The Compa-
ny then brought the matter to the Board once more, filing
exceptions to the Regional Director's conclusion. At long
last, the Board ruled the election had been perfectly fair
and, on October 1., 1976, certified the Union as exclusive
bargaining agent of all the employees.
Six days later the Union wrote a letter asking the Re-
spondent to start bargaining. The answer, a week later,
from the Company's lawyer, said "no," because "my client
does not believe the certification . . . is valid."
The next thing that happened is that the Union filed
unfair labor practice charges against the Respondent late
in October, saying it had illegally discharged the union ac-
tivists. Many months later, on March 15, 1977, that case
was settled. Five former employees were given backpay.
They waived reinstatement and the Company agreed to
post notices saying that it would not thereafter violate the
statute. The settlement agreement expressly stated that it
did not constitute any admission of violation of the Act by
the Respondent.
The complaint which issued in that discharge case also
alleged the Respondent had refused to bargain in violation
of Section 8(a)(5). A more important part of the March 15
settlement, therefore. was that the Company promised to
bargain in good faith and agreed the certification year
should start all over again on that date.
There followed correspondence between the parties, the
Union inviting direct bargaining sessions and requesting
information of various kinds. This included rates of pay,
hours of work, job titles, fringe benefits being paid, and the
addresses of all bargaining unit employees of the moment.
Much of the requested data was produced but not the ad-
dresses of the employees. In a letter of April 5 the Compa-
ny told the Union it would not give that information be-
cause it had furnished the Excelsior list before the
election.2 The Union repeated this request again by letter
of April 12 and again on April 13 counsel for Respondent
repeated the refusal for the same reason-the old Excelsior
list.
On April 15 the Respondent posted, near the timeclock
and in the employees' dining room, the 60-day notice pro-
vided for in the settlement agreement mentioned above.
Next to each of these notices it posted another, reading as
follows:
As you know, Local 1115 is the designated bargaining
representative of some of our employees. The union
has requested that we furnish it with the home ad-
dresses of those employees. We have asked our attor-
ney to determine whether we are required to do so.
In case we are required to furnish your home address-
es, you may be contacted at home by representatives
of Local 1115, which they are entitled to do.
2 tEx-clrr Underwear Inc. and Saluda Knirting In . 156 NLRB 1236
1966). Before each of the two elections the Respondent sent to the Union a
list of emplosees and their addresses.
WELLINGTON HALL NURSING HOME 641
Both notices remained posted for 60 days.
Upon learning from the Company's notices that the
Union was seeking their addresses and that there was a
legal question whether the employer had to satisfy that re-
quest, several employees conceived the notion of signing a
petition requesting the Company to withhold that informa-
tion. A number signed the petition, I think a majority of
the current complement. With this the Respondent wrote
to the Union again, on April 23, now saying it would refuse
to give the addresses because of the signatures by "an over-
whelming majority of the employees."
C. Analysis and Conclusion
On consideration of all the pertinent facts I find that the
refusal to furnish employee addresses in this instance con-
stituted an illegal refusal to recognize the Union's exclusive
majority representative status and therefore an unfair labor
practice under Section 8(a)(5). The relevance of the infor-
mation sought is not only clear, as already stated, but the
Respondent here does not even dispute that fact. The ques-
tion, rather, is whether the Respondent has come forth
with sufficient reason to excuse what would otherwise be
its violation of the statute. Minor assertions apart, the es-
sential basis of its justification--expressly stated in the re-
jection letter of April 23 and repeatedly argued at the hear-
ing-is that the Union had lost its majority support among
the employees. The argument was not stated in precisely
those words, but the total position of the employer here
amounts to no less than that.
Had the Respondent bargained without delay after the
Union established its majority status in the election--back
in June 1976-the fact of its having furnished an Excelsior
list only the month before would have borne a certain sig-
nificance to a refusal to furnish addresses anew at that
time. Instead, the Respondent filed objections which had
no merit. As time went on the employee complement ex-
panded, there was a turnover, and the old Excelsior list
became less and less adequate to satisfy the statutory re-
quirement that the Company give this information on re-
quest. While the numbers were not clearly established on
the record, it does appear that by April 1977 about 25 jobs
and incumbents had been added to the approximately 100
that were there the previous June. After saying "about 124"
employees were at work at the time of the hearing, August
of 1977, Ronald Squillace, administrator of the home, said
there were "90, 100" employees in April of 1975. when the
first election was held. When the second election took
place, he said, there were "around 100." Moreover, even
among the old cadre there was a turnover, and it was a
substantial one. An exhibit received in evidence responds
to one of the Union's requests for wage data: it lists 90
employees and gives their date of hire. This was sent to the
Union at about the end of March 1977. Of these 90 alone,
59 were hired after the last Excelsior list was given to the
Union in 1976. It was also stated at the hearing, without
contradiction, that the employees are dispersed over a wide
area: indeed, they' live throughout three separate counties.
In such circumstances it will not do for the Respondent to
say, as it does in its brief. that if the Union would like to
have the addresses, all it need to do is "a little work."
Board law is not to be so easily swept away.
Julie Hernandez, a nurse's aide called by the Respon-
dent, testified it was she who initiated the petition-signing
acitvity. She started by recalling her reaction when she first
saw the notice about addresses posted by the Company.
"We did not even know that the Union was in, unless we
were misadvised on what the paper said up there....
[W]e were discussing it and the girls said do we have a
union here, we don't want to be represented by a union."
No other employee was called to testify.
On the face of Hernandez' testimony, it appears clear
that she took this opportunity to make a record of her
desire not to be represented in collective bargaining by the
Union. In fact she had long been opposed, for she also said
two union agents had once come to visit her but she "re-
fused to talk" to them. It may even be, in view of the
continuing delays before the Union achieved even ostensi-
ble recognition by the Company, that Hernandez did not
know the Union still existed, although I very much doubt
that.
In any event, another argument now made by the Re-
spondent upon the basis of this sole employee's testimony
is not supported by any persuasive evidence. The Company
says it had a right to refuse the addresses because of danger
the employees might be "harassed," and cites the circuit
court decision in Shell Oil Company v. N.L.R.B.., 457 F.2d
615 (9th Cir. 1972). The court disagreed with the Board's
finding in that case. But even in Shell Oil the Court spoke
of physical violence and other forms of harassment which
had in fact been carried on by union sympathizers. There is
no evidence at all in this record indicating even the possi-
bility of such danger.
If the Respondent's stated position be taken together
with Hernandez' admissions, it must be seen that the real
contention here, albeit obliquely phrased, is that there had
been such a mass rejection of the Union that it had lost its
previously established representative status. Asked "Can
you tell me exactly why you did not want the Union to
have your address?". Hernandez replied: "Because I feel I
do not want to be a member of a Union." This is a far cry
from any mere desire to preserve home privacy as distin-
guished from in-plant, or near-the-plant union activity.
This is pure expression of a change of heart. Hernandez, it
was also shown, had once upon a time signed a member-
ship application and checkoff authorization in favor of the
Union. Maybe by the time of the second election she had
already changed her mind, but maybe it was the Respon-
dent's posted notice of April 15 that planted the seed in her
mind of starting an antiunion campaign among the rest of
the employees. It must also be remembered that when the
Union's majority status could not have been clearer-right
after its certification by the Board on October I, 1976-the
Respondent simply refused to extend recognition upon re-
quest. It gave no reason then for its outright refusal, and it
has given no reason since to explain away that plain denial
of its statutory obligation.
Fairly appraised, the Respondent's real defense is that it
did not have to produce the relevant data because the
Union had lost its majority representative status. The re-
peated references to the fact that a "majority" had signed
the April petition clearly prove the point. The initial letter
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of rejection, on April 23, stresses the fact "an overwhelm-
ing majority" had decided the addresses should not be for-
warded. The Respondent's brief starts by asking whether
"a petition signed by a clear majority" suffices to justify
the refusal. And in the argument that then follows, the
employee activity this would be Hernandez and her
friend who circulated throughout the nursing home solicit-
ing signatures--is called "self-organization by the employ-
ees."
On the accepted scheme of the statute it was not the time
for dissident employees to engage in self-organization ac-
tivities aimed at unseating the certified union. And it was
not the moment for the employer to refuse to bargain in
any respect on the ground that the employees were not
backing the Union in sufficient numbers. Whether the cer-
tification year be deemed to have started on October 1., the
day of formal certification, or on March 15 next, when by
settlement of another case the Respondent agreed to bar-
gain and to start it all over again, the demand and refusal
of April 1977 fell within the 12-month period, and any
question about the Union's majority status was therefore
impermissible under Section 8(a)(5). Rql Brooks v.
N. L. R. B., supra.
This business of injecting the employees between itself
and the Union as a technique for curtailing the bargaining
rights which the statute assures the established bargaining
agent harks back to a somewhat comparable situation also
decided by the Supreme Court. In N.L.R.B. v. Wooster Di-
vision of Borg-Warner Corporation, 356 U.S. 342 (1958), the
employer argued it had a right to insist that the union sur-
render its right to call a strike short of a vote by the em-
ployees agreeing to such action. The Board, and the Court,
held the employer may not intrude in the relationship be-
tween the exclusive bargaining agent and the employees on
whose behalf it speaks. The net effect of what the Respon-
dent was doing in this case was to tell the Union it could
not exercise the full gamut of its statutory authority unless
it could convince a majority of the employees of what it
wished to do on their behalf.
IV [tie RMEIDY
In view of its illegal refusal in the past, the Respondent
must be ordered to furnish the Union the names and ad-
dresses of all its employees in the bargaining unit on re-
quest hereafter. And in light of the long delays that have
already put off correct collective bargaining, it must be
ordered to bargain in good faith from now on. Moreover,
also in view of the history of the case, the certification year
will start anew again the day the Respondent starts com-
plying with this remedial order. Mar-Jac Poultr Compan,
Inc., 136 NLRB 785 (1962).
In her brief the General Counsel asks that the Respon-
dent be ordered to reimburse both the Board and the
Union for all expenses they incurred in connection with
each and every Board proceeding involving these parties,
starting with the original election petition filed in 1975. The
request rests upon the assertion that every position taken
by the Respondent was "frivolous," and analogizes this sit-
uation with that considered by the Board in Tiidee Prod-
ucl.v, Inc., 194 NLRB 1234 (1972). Although the General
Counsel does not specify, an implication is that the 1976-
77 complaint that was settled must be considered as part of
the Respondent's cavalier disregard of the law throughout
the events. She even says the fact the Company got rid of
the leaders of the union movement is added reason why it
must furnish new addresses now. However the Respon-
dent's conduct in the past be evaluated, I do not think that
particular proceeding, which was settled amicably, may be
counted in what the General Counsel calls frivolous de-
fenses. To start with, this record does not prove unlawful
discharges at all, for that case was never tried. But more
important, the Government agreed in the settlement papers
that that entire proceeding was not to be deemed evidence
of any unfair labor practice by the Respondent. For the
rest, there is no previous record of Board findings against
this Company, and whatever else happened was not too
great a variance from what the Board deals with in cases
without number. I do not believe this case warrants the
special remedy asked for.
V rIlHE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II1,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLU.SIONS OF LAW
1. By failing and refusing to provide the Union with the
names and addresses of all employees in the bargaining
unit, under the circumstances described above, the Re-
spondent has engaged in and is engaging in unfair labor
practices in violation of Section 8(a)(5) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Wellington Hall Nursing Home, Inc.,
Hackensack, New Jersey, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Failing and refusing, upon request, to furnish Local
1115, Joint Board Nursing Home and Hospital Employees
Division, with a list of the names and addresses of all em-
In the event no exceptions are filed as provided by Sec. 10246 of the
Rules and Regulations of the National abor Relations Board, the findings,
conclusions and recommended Order herein shall. as provided in Sec.
102.48 of the Rules and Regulations. he adopted by the Board and become
It, findings. conclusions. and Order, and all objections thereto shall be
deemed suaived for all purposes.
WELLINGTON HALL NlIRSING HOME 643
ployees in the bargaining unit, or otherwise refusing to bar-
gain in good faith with that Union as the exclusive bargain-
ing agent of its employees.
(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 designed to ef-
fectuate the policies of the Act:
(a) Upon request. furnish to the forenamed Union a
written list of the names and addresses of all employees in
the bargaining unit.
(b) Upon request, bargain in good faith with the Union
in the bargaining unit found appropriate in the outstanding
Board certification.
(c) Post at its place of business in Hackensack, New Jer-
sey, copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Regional
Director for Region 22. after being duly signed by its repre-
sentative, shall be posted by the Respondent immediatel,
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places. including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken b the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 22. in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to complN herewith.
In he esent that his Order is enforced h% jiudgmenl of I.lteld 5. t;[c
Court of ppeals. the , rds In the notic readii -Po,iled h, ()rdci1 Il ie
National .ahbor Relations Board" hall read "I'osed Purlanll t, .t, Jid
ment of the United States ourt of ppeals [ nforriqg an ()rdel of tlre
Nationail tLahbor Relauions Board
APPEN DIX
NOTI To EMPI OYF'vlS
PosT ED B ORDER O)F THE
NA IINAL LABOR R.IArlONs BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
hearing that we iolated the Federal law bh refusing to
furnish necessar information to the nion:
WE' \wLHl 'so refuse, on request. to furnish ocal
1115. Joint Board Nursing Home and Hospital Em-
ploxees Division. a list of the names and addresses of
all our emploxees in the following appropriate bar-
gaining unit:
All full-time and regular part-time service and
maintenance employees, including licensed practi-
cal nurses and all clerical employees other than
business office clerical employees. employed at our
Hackensack, New Jersey, place of business. exclud-
ing all registered nurses, professional employees.
guards and all supervisors as defined in the Act.
Wt i wt ' sol refuse to bargain in good faith with this
Union.
Wt. Iklt. NOT in any like or related manner interfere
with, restrain. or coerce our employees in the exercise
of the right to self-organization, to join or assist Local
1115. Joint Board Nursing Home and Hospital Em-
ployees Division. or an\ other labor organization. or
to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
tion, or to refrain from an, and all such activities.
WF.ii's(tio,() HAl. Nt RSIN( Ho.i-. IN(