On Appeal from a Decision of the National Labor Relations Benefits Review Board. D.C. Civil Action Nos. 22-CA-17250 and 22-CA-17402.
Before: Becker, Roth, and Lewis, Circuit Judges.
The National Labor Relations Board (NLRB or the Board) petitions to enforce its July 6, 1992, order against employer New Associates d/b/a Hospitality Care (Hospitality Care). The order requires Hospitality Care to recognize 1115 Nursing Home and Hospital Employees Union (the Union), a division of 1115 Joint Board, as the exclusive bargaining representative of a certain unit of Hospitality Care employees and to cease and desist from certain unfair labor practices. Hospitality Care cross-petitions for review of the order.
The issue for our consideration is whether Hospitality Care was guilty of an unfair labor practice when, due to a pending decertification petition, it withdrew from further collective bargaining and it refused the Union's request for certain employee and financial records. For the reasons set out below, we will deny the NLRB's petition for enforcement of its order, we will grant Hospitality Care's petition for review, and we will remand this case to the NLRB to permit it to determine whether, under the rule we adopt here, the Board chooses to inform Hospitality Care of the percentage of employees who signed the decertification petition.
Hospitality Care operates a nursing home facility in Newark, New Jersey. Through several collective bargaining agreements (CBAs), Hospitality Care has recognized the Union as the exclusive bargaining representative of a unit of Hospitality Care employees. On May 1, 1990, pursuant to the terms of the then existing CBA, the Union sought to reopen and negotiate wages and other general terms and conditions of employment. It asked Hospitality Care for the names, addresses, dates of hire, categories, and wage rates of all employees covered by the CBA in order to formulate future bargaining demands and to make the employees aware of their eligibility for benefits and raises. Apparently, there was some confusion regarding the request and Hospitality Care did not supply the information.
On June 1, 1990, the Union sent Hospitality Care a list of demands for a new CBA. The list requested a wage increase for each year of the proposed agreement as well as other increases and benefits. Thereafter, the parties conducted three negotiating sessions. At each meeting, Hospitality Care rejected the Union's demands stating that, because it was having difficulty obtaining reimbursement from the state of New Jersey, it needed to have a total wage freeze for the first year of the new agreement. While the Union agreed to wage reductions in the third year, it would not agree to the first year wage freeze. The parties held their last meeting on August 9, 1990. The Union again requested the employee information it had been seeking since May. Hospitality Care indicated that it was still in the process of compiling the information. The meeting ended without an agreement and without a date for further negotiations.
Shortly after the August 9 meeting, the Union contacted Hospitality Care and requested the employee information as well as permission to audit Hospitality Care's financial records in order to verify that Hospitality Care was unable to afford a first year wage increase. Despite the Union's repeated requests, Hospitality Care failed to supply any of the information.
On August 23, 1990, a Hospitality Care employee filed a decertification petition with the NLRB asserting that at least thirty percent of the employees no longer recognized the Union as their official bargaining representative. See National Labor Relations Act (NLRA), 29 U.S.C. § 159(c)(1)(A)(ii). Generally, an employee will file such a petition with a Regional Office of the NLRB in order to terminate the recognized union's status as bargaining representative. If the petition is supported by at least thirty percent of the unit employees and if the NLRB finds reasonable cause to believe that there is merit to the petition, the Regional Director will conduct a hearing. Id. at § 159(c)(1). If the hearing demonstrates that there is a serious question of the union's representative status, the NLRB will hold a decertification election within the bargaining unit. Id.
In this case, although the NLRB made an initial determination that the prescribed minimum number of employees no longer supported the Union, it did not release the exact percentage of non-supporting employees to Hospitality Care. As a result, Hospitality Care did not know whether a majority of the employees sought decertification. Hospitality Care withdrew from further collective bargaining based on its assertion that the filing of the petition demonstrated a substantial showing of lack of support for the Union.
On September 12, 1990, while the decertification petition was still pending, the Union filed an unfair labor practice charge with the NLRB. The Union alleged that Hospitality Care had failed to bargain collectively in good faith because it refused to contribute to the Union's funds and to submit accurate lists of employees. After filing the charge, the Union attempted to schedule another bargaining session with Hospitality Care and requested audited financial statements covering several years. At the NLRB hearing, Hospitality Care indicated that it had denied the Union's requests due to the pending decertification petition. Hospitality Care argued that it had properly withdrawn from bargaining because a substantial number of employees no longer recognized the Union as their legitimate bargaining representative.
On September 19, 1991, Administrative Law Judge Fish concluded that Hospitality Care had violated sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1),(5), by failing to meet and bargain with the Union. Judge Fish found in addition that Hospitality Care had engaged in an unfair labor practice by failing to furnish information relevant to collective bargaining and by refusing to permit an audit of its financial records. Judge Fish recommended that Hospitality Care cease and desist from refusing to bargain collectively with the Union. He held that, upon the Union's request, Hospitality Care should furnish the names, addresses, dates of hire, categories, and wage rates of unit employees. Moreover, Hospitality ...