Grandview Health Care

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. Beverly Enterprises—Pennsylvania, Inc., d/b/a Grandview Health Care and Service Employees International Union, Local 585, AFL–CIO, CLC. Cases 6–CA–26320 and 6–CA–27198 October 15, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge and amended charge filed in Case 6–CA–26320 on April 7 and April 25, 1994, re­ spectively, and a charge filed in Case 6–CA–27198 on April 11, 1995, the General Counsel of the National Labor Relations Board issued a consolidated amended complaint on May 30, 1995, alleging that the Respond­ ent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 6– RC–10978. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respond­ ent subsequently filed a second amended answer ad­ mitting in part and denying in part the allegations in the consolidated complaint. On July 10, 1996, the General Counsel filed a Mo­ tion for Summary Judgment. On July 12, 1996, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 26, 1996, the Respond­ ent 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 second amended answer and response the Re­ spondent admits its refusal to bargain, but attacks the validity of the certification on the basis of the Board’s determination in the representation proceeding that Re­ spondent’s licensed practical nurses employed as charge nurses are not statutory supervisors. 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 The Respondent, a California corporation with of­ fices and places of business located throughout the United States, including a facility located in Oil City, Pennsylvania, has been engaged as a health care insti­ tution in the operation of a nursing home providing in- patient medical and professional care and services for the elderly, sick, and infirm. During the 12-month pe­ riod ending March 31, 1994, the Respondent, in con­ ducting its business operations described above, de- rived gross revenues in excess of $100,000 and pur­ chased and received at its Oil City, Pennsylvania facil­ ity goods valued in excess of $5000 directly from points outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care institution within the meaning of Section 2(14) 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 January 27, 1994, the Union was certified on March 11, 1994,1 as the exclu­ sive collective-bargaining representative of the employ­ ees in the following appropriate unit: 1 On August 24, 1994, subsequent to the certification, the Board issued an order granting the Respondent’s request for reconsideration of the Board’s previous denial of the Respondent’s request for re- view of the Acting Regional Director’s Decision and Direction of Election and remanding to the Regional Director for reconsideration in light of the Supreme Court’s decision in NLRB v. Health Care & Retirement Corp., 511 U.S. 571 (1994). The Regional Director thereafter issued a supplemental decision affirming the Acting Re­ gional Director’s prior finding that the Respondent’s charge nurses are not supervisors, and by order dated May 17, 1996, the Board de­ nied the Respondent’s request for review. Chairman Gould, who was not on the panel in the underlying rep­ resentation case, and Member Fox agree that review of the Regional Director’s Supplemental Decision and Order was correctly denied. They also agree that, in view of the fact that, in response to the Em­ ployer’s motion for reconsideration at an earlier stage of the pro­ ceeding, the case was remanded for further consideration by the Re­ gional Director in light of the Supreme Court’s intervening decision in NLRB v. Health Care & Retirement Corp., and that the remand expressly contemplated a possible reopening of the record, there was no error in the Regional Director’s reliance on evidence introduced in the 1994 reopened hearing concerning the functioning of the Em­ ployer’s nursing facility after the close of the initial hearing in 1993. 322 NLRB No. 54 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time licensed prac­ tical nurses employed by the Employer at its Oil City, Pennsylvania, facility; excluding the medical records coordinator, registered nurses, service and maintenance employees, office clerical employees, management employees, casual and temporary employees and guards, professional employees 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 March 16, 1994, and February 6, 1995, the Union requested the Respondent to bargain, and, since April 4, 1994, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing to bargain with the Union as the exclu­ sive collective-bargaining representative of employees in the appropriate 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, Beverly Enterprises—Pennsylvania, Inc. d/b/a Grandview Health Care Center, Oil City, Penn­ sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union, Local 585, AFL–CIO, CLC as the exclusive bargaining representative 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 employed by the Employer at its Oil City, Pennsylvania, facility; excluding the medical records coordinator, registered nurses, service and maintenance employees, office clerical employees, management employees, casual and temporary employees and guards, professional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Oil City, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 6 after being signed by the Respondent’s au­ thorized 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 April 7, 1994. (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 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ GRANDVIEW HEALTH CARE attesting to the steps that the Respondent has taken to WE WILL NOT refuse to bargain with Service Em- 3 comply. Dated, Washington, D.C. October 15, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ployees International Union, Local 585, AFL–CIO, CLC as the exclusive representative of the employees 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. 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 employed by us at our Oil City, Penn­ sylvania, facility; excluding the medical records coordinator, registered nurses, service and mainte­ nance employees, office clerical employees, man­ agement employees, casual and temporary em­ ployees and guards, professional employees and supervisors as defined in the Act. BEVERLY ENTERPRISES—P ENNSYLVA­ NIA, INC. GRANDVIEW HEALTH D/B/A The National Labor Relations Board has found that we CARE CENTER violated the National Labor Relations Act and has or­ dered us to post and abide by this notice.