CONFIDENCE MANAGEMENT SYSTEMS,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Hamilton Park Health Care Center and 1199, SEIU

United Healthcare Workers East

Confidence Management Systems at Hamilton Park Health Care Center and 1199, SEIU United Healthcare Workers East. Cases 22–CA– 161283, 22–CA–161287

August 17, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On September 14, 2016, Administrative Law Judge John T. Giannopoulos issued the attached decision. The Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief.¹

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,² and conclusions, and to adopt the recommended Orders.

ORDER

The National Labor Relations Board adopts the recommended Orders of the administrative law judge and

¹ On November 14, 2016, the Respondents filed a motion to reopen the record to introduce an order of the United States District Court for the District of New Jersey, dated September 21, 2016, dismissing a lawsuit related to the arbitration in this case and remanding the dispute to the arbitrator without prejudice for a final decision on all issues. We take administrative notice of the court order and thus find it unnecessary to pass on the Respondents’ motion. We observe, moreover, that the order does not alter the Respondents’ obligation under the Act to furnish the information in issue.

² In agreeing with the judge that deferral of this case to arbitration is inappropriate given the Board’s longstanding policy against deferring information request cases, we find it unnecessary to rely on his discussion of New Island Hospital, 344 NLRB 198 (2005).

Chairman Miscimarra believes that the Board should reconsider its longstanding policy of nondeferral, especially where the information is relevant to the matters being arbitrated. However, Chairman Miscimarra agrees with the judge’s finding that deferral is not appropriate here because the Respondents have repeatedly failed to comply with the arbitrator’s order to produce the requested information. In his view, to defer under such circumstances would not effectuate the policies of the Act.

We agree with the judge that the Union established the relevance of the information it requested about the Atrium employees. Therefore, we find it unnecessary to pass on his findings that the Atrium employees are not included in collective-bargaining unit and, concomitantly, that the information requested about them is not presumptively relevant.

orders that the Respondents, Hamilton Park Health Care Center, Jersey City, New Jersey, and Confidence Management Systems at Hamilton Park Health Care Center, Linden, New Jersey, their officers, agents, successors, and assigns, shall take the action set forth in the Orders.

Dated, Washington, D.C. August 17, 2017

______________________________________

Philip A. Miscimarra, Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Eric B. Sposito, Esq. and Julie Kaufman, Esq., for the General

Counsel.

David F. Jasinski, Esq. and Rebecca D. Winkelstein, Esq.

(Jasinski, P.C.), for the Respondent. Katherine H. Hansen, Esq., for the Charging Party.

DECISION

STATEMENT OF THE CASE

JOHN T. GIANNOPOULOS, these cases were tried in Newark, New Jersey, on June 7, 2016, pursuant to two separate complaints, both of which were issued on February 24, 2016, by the Regional Director for Region 22 on behalf of the General Counsel.¹ The complaint and notice of hearing in Case 22–CA– 161287 alleges that Hamilton Park Health Care Center (Hamilton Park) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act) by failing and refusing to furnish 1199, SEIU United Health Care Workers East (Union) with information it requested on June 23, 2015,² that is necessary for, and relevant to, its duties as the exclusive collective-bargaining representative of certain employees employed by Hamilton Park. The complaint and notice of hearing in Case 22–CA– 161283 alleges that Confidence Management Systems at Hamilton Park Health Care Center (Confidence Management Systems or CMS) similarly violated Section 8(a)(1) and (5) of the Act by failing and refusing to furnish the Union with necessary and relevant information. Because both Respondents were represented by the same counsel, and the both cases involved simi

¹ Citations to the transcripts will be denoted by “Tr.” with the appropriate page number. Citations to the General Counsel’s Exhibits, Respondent’s Exhibits, Union Exhibits, and Joint Exhibits will be denoted by “GC” “R.” “U.” and “Jt. Exh.” respectively.

² All dates are in 2015 unless otherwise noted.

365 NLRB No. 117

2

lar evidence, with the same charging party, it was agreed that the hearings would be opened concurrently with evidence admitted into the record for both matters. Based upon the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties, I make the following findings of fact and conclusions of law.³

I. JURISDICTION AND LABOR ORGANIZATION

Hamilton Park is a New Jersey corporation with an office and place of business in Jersey City, New Jersey, where it is engaged in the business of operating a nursing home. It derives annual gross revenues in excess of $100,000, and purchases and receives goods valued in excess of $5000 directly from points located outside the State of New Jersey. Respondent Hamilton Park admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

Confidence Management Systems is a New Jersey corporation with an office and place of business in Linden, New Jersey, where it is engaged in the business of providing housekeeping and laundry services to various health care facilities, including to Respondent Hamilton Park. CMS annually purchases and receives goods valued in excess of $50,000 directly from points located outside the State of New Jersey. Respondent CMS admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

Both Respondent Hamilton Park and Respondent CMS admit, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act.

II. FACTS

1. Background

   Hamilton Park operates a nursing home in Jersey City, New Jersey. Next to the nursing home is an assisted living facility named the Atrium at Hamilton Park (Atrium). Hamilton Park and the Atrium are located on the same campus, in two separate buildings next door to each other. (Tr. 51–52.) In about April 2013 the assets of both Hamilton Park and the Atrium were sold to an ownership group referred to “Alaris” or “Alaris Health.”⁴ (Tr. 21, 37, 75, 93, 98, 111.)

   ³ When necessary, credibility resolutions have been made based upon a review of the entire record and all exhibits in this proceeding. Witness demeanor was primarily considered in making credibility resolutions. I also considered the inherent probability of the testimony and whether such testimony was in conflict with credited testimony or documentary evidence. Testimony contrary to my findings has been discredited.

   ⁴ There is scant evidence conclusively explaining the purchase, the corporate structures of the new owners, the exact relationship between “Alaris” and Hamilton Park, or that of “Alaris” and the Atrium. Moreover, in a Federal district court consent order introduced into evidence, the purchaser of Hamilton Park is referred to as Hamilton Park Opco, LLC. (GC 8) It is unknown whether the same corporate entity/entities purchased the assets of both Hamilton Park and the Atrium. While both Respondents and the Union submitted arbitration briefs into evidence that touch upon the sale (GC 36; R. 3) “[a]rguments in the parties’ briefs are not evidence.” Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006); Estrella v. Bryant, 682 F.2d 814, 819 (9th Cir.1982) (Legal memoranda and oral argument are not evidence).

   The Union has represented employees at Hamilton Park since at least April 2005. At the time, Hamilton Park was a member of a multiemployer bargaining group that bargained with the Union as the bargaining representative for the group’s employees. See Hamilton Park Health Care Center Ltd. v. 1199 SWIU United Healthcare Workers East, 817 F.3d 857, 859 (3d Cir. 2016). In April 2005 Hamilton Park signed an “Adoption Memorandum” adopting the multiemployer collective-bargaining agreement (2005 CBA) with the Union.⁵ (GC 2–1, p. 40) In 2008, the bargaining group entered into a new contract with the Union, effective March 13, 2008 through February 28, 2013 (2008 CBA).⁶ Hamilton Park Health Care Center Ltd., 817 F.3d at 859.

   The 2008 CBA gave the Union the option to reopen negotiations to bargain for new employment terms during the CBA’s last year, and further provided that, if the parties did not agree to new terms by a certain date, they could submit any unresolved items to binding interest arbitration. Id. at 859–860.⁷ The Union invoked its right to reopen negotiations in November 2011, but the parties reached an impasse and submitted the unresolved issues to arbitration. In November 2012, the arbitrator issued a multiyear award, thereby extending the collectivebargaining agreement through June 30, 2016. Hamilton Park filed a petition in Federal court to vacate the award claiming the arbitrator...