Edgewood Nursing 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. Edgewood Nursing Center, Inc., a Wholly Owned Subsidiary of Coventry Care Inc.; a Wholly Owned Subsidiary of United Health Facilities, Inc. and International Brotherhood of Team­ sters Local Union No. 30, AFL–CIO. Case 6– CA–28308 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge filed on July 11, 1996, counsel for the General Counsel of the National Labor Rela­ tions Board issued a complaint on August 1, 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 6–RC–11293. (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 12, 1996, the General Counsel filed a Motion for Summary Judgment. On August 14, 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. The Respondent filed a re­ sponse. 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 determination in the representation proceeding that the Respondent’s registered nurses (RNs) and licensed practical nurses (LPNs) 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, a Wisconsin corporation with its headquarters in Milwaukee, Wis­ consin, has been engaged in the management and oper­ ation of a nursing home facility located in Youngs­ town, Pennsylvania. During the 12-month period end­ ing June 30, 1996, the Respondent, in conducting its business operations, derived gross revenues in excess of $100,000 and purchased and received for use at its Youngstown, Pennsylvania, facility goods valued in excess of $5,000 directly from points outside the Com­ monwealth of Pennsylvania. At all material times the Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act, and the Union has been a labor organization with- in the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held June 12, 1996, the Union was certified on June 25, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses and licensed practical nurses, including the nurse assessment coordinator, employed by the Employer at its Youngstown, Pennsylvania, facil­ ity; excluding all office clerical employees, em­ ployees in the existing service and maintenance and technical employees bargaining unit, the ad­ ministrator, the director of nursing, nurse super- visors, all other department heads, medical records clerks and guards, other professional em­ ployees and other supervisors as defined in the Act and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About June 13, 1996, the Union, by letter, requested the Respondent to recognize and bargain, and, since about June 27, 1996, the Respondent has refused. We 1 Member Fox did not participate in the underlying representation case. However, she agrees with her colleagues that the Respondent has raised no new issues in this ‘‘technical’’ 8(a)(5) case. 322 NLRB No. 5 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after June 27, 1996, to recognize and bargain with the Union as the exclusive collective- bargaining representative of employees in the appro­ 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, Edgewood Nursing Center, Inc., a Wholly Owned Subsidiary of Coventry Care, Inc., a Wholly Owned Subsidiary of United Health Facilities, Inc., Youngstown, Pennsylvania, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Brother- hood of Teamsters Local Union No. 30, AFL–CIO, as the exclusive bargaining representative of the employ­ ees 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 registered nurses and licensed practical nurses, including the nurse assessment coordinator, employed by the Employer at its Youngstown, Pennsylvania, facil­ ity; excluding all office clerical employees, em­ ployees in the existing service and maintenance and technical employees bargaining unit, the ad­ ministrator, the director of nursing, nurse super- visors, all other department heads, medical records clerks and guards, other professional em­ ployees and other supervisors as defined in the Act and all other employees. (b) Within 14 days after service by the Region, post at its facility in Youngstown, 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 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 July 11, 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. llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.’’ EDGEWOOD NURSING CENTER 3 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 International Brotherhood of Teamsters Local Union No. 30, AFL– CIO 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 registered nurses and licensed practical nurses, including the nurse assessment coordinator, employed by the Employer at its Youngstown, Pennsylvania, facil­ ity; excluding all office clerical employees, em­ ployees in the existing service and maintenance and technical employees bargaining unit, the ad­ ministrator, the director of nursing, nurse super- visors, all other department heads, medical records clerks and guards, other professional em­ ployees and other supervisors as defined in the Act and all other employees. EDGEWOOD NURSING CENTER, INC., A WHOLLY OWNED SUBSIDIARY OF COV­ ENTRY CARE INC.; A WHOLLY OWNED SUBSIDIARY OF UNITED HEALTH FACILI­ TIES, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION NO. 30, AFL–CIO 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 registered nurses and licensed practical nurses, including the nurse assessment coordinator, employed by the Employer at its Youngstown, Pennsylvania, fa­ cility; excluding all office clerical employees, employees in the existing service and maintenance and technical employees bargaining unit, the administrator, the director of nursing, nurse super- visors, all other department heads, medical records clerks and guards, other professional em­ ployees and other supervisors as defined in the Act and all other employees. EDGEWOOD NURSING CENTER, INC., A WHOLLY OWNED SUBSIDIARY OF COVENTRY CARE, INC.; A WHOLLY OWNED SUBSIDIARY OF UNITED HEALTH FACILITIES, INC. (Employer) Dated By (Representative) (Title) 1000 Liberty Avenue, Room 1501, Pittsburgh, Pennsylvania 15222-4173, Telephone 412–644–2969 5