Cedar Ridge Nursing & Rehabilitation Center

1 NOTICE: This opinion is subject to formal revision before publication in the Board 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 er­ rors so that corrections can be included in the bound volumes. Glenmark Associates, Inc. d/b/a Cedar Ridge Nurs­ ing and Rehabilitation Center and District 1199, The Health Care and Social Service Union, SEIU, AFL–CIO. Case 9–CA–34081 September 20, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge and amended charge filed on August 2 and 6, 1996, respectively, the General Coun­ sel of the National Labor Relations Board issued a complaint and notice of hearing on August 9, 1996, al­ leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 9–RC–16556. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu­ lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an­ swer admitting in part and denying in part the allega­ tions in the complaint. On August 27, 1996, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support, with exhibits attached. On August 28, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo­ tion should not be granted. On September 11, 1996, 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 and response the Respondent admits its refusal to bargain, but attacks the validity of the cer­ tification on the basis of the Board’s unit determina­ tion in the representation proceeding. The Respondent alleges that the licensed practical nurses (LPNs) are statutory supervisors and therefore the certified unit is invalid. 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). Accordingly, we grant the Motion for Summary Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a West Vir­ ginia corporation, has been engaged in the operation of a nursing home providing skilled nursing care at its Sissonville, West Virginia facility. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its oper­ ations, derived gross revenues in excess of $100,000 and purchased and received at its Sissonville, West Virginia facility goods valued in excess of $5000 di­ rectly from points outside the State of West Virginia. 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 organi­ zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 7, 1995, the Union was certified on April 29, 1996,1 as the exclusive col­ lective-bargaining representative of the employees in the following appropriate unit: All full time and regular part-time licensed prac­ tical nurses (LPNs) employed by the Employer at its Sissonville, West Virginia facility, excluding all professional employees, 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 About May 30, 1996, the Union, in writing, re- quested the Respondent to bargain, and, about July 22, 1996, the Respondent, by letter, refused. We find that this refusal constitutes an unlawful refusal to recognize and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after July 22, 1996, to recognize and bargain with the Union as the exclusive collective- bargaining representative of employees in the appro- 1 Pursuant to a petition filed in Case 9–AC–99, on August 7, 1996, the Union’s certification as the exclusive collective-bargaining rep­ resentative of the unit was amended to correct the name of the Re­ spondent. 322 NLRB No. 29 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD priate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 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, Glenmark Associates, Inc. d/b/a Cedar Ridge Nursing and Rehabilitation Center, Sissonville, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to recognize and bargain with District 1199, The Health Care and Social Service Union, SEIU, AFL–CIO as the exclusive bargaining represent­ ative 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. 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 licensed prac­ tical nurses (LPNs) employed by the Employer at its Sissonville, West Virginia facility, excluding all professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Sissonville, West Virginia, copies of the attached notice marked ‘‘Appendix.’’2 Copies of 2 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 the notice, on forms provided by the Regional Director for Region 9 after being signed by the Respondent’s authorized representative, shall be posted by the Re­ spondent and maintained 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 no­ tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since August 2, 1996. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 20, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 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 District 1199, The Health Care and Social Service Union, SEIU, AFL–CIO as the exclusive representative of the em­ ployees in the bargaining 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. CEDAR RIDGE NURSING & REHABILITATION CENTER 3 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 licensed prac­ tical nurses (LPNs) employed by us at our Sissonville, West Virginia facility, excluding all professional employees, guards and supervisors as defined in the Act. GLENMARK ASSOCIATES, INC. D/B/A CEDAR RIDGE NURSING AND REHABILI­ TATION CENTER