New Ralston House

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. The New Ralston House of the University of Penn­ sylvania and District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL–CIO. Case 4–CA–25194 October 31, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge and amended charge filed on August 16 and 20, 1996, respectively, the General Counsel of the National Labor Relations Board issued a complaint on August 29, 1996, alleging that the Re­ spondent 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 4–RC–18766. (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 Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On October 3, 1996, the General Counsel filed a Motion for Summary Judgment. On October 7, 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 October 21, 1996, the Respondent filed a response and a Motion to Revoke Certification. 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 the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of the Board’s unit determination in the rep­ resentation proceeding. The Respondent contends that the record in the underlying representation case estab­ lishes that the licensed practical nurses (LPNs) are stat­ utory supervisors and therefore the certified unit is in- valid and the certification should be revoked. 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 and deny the Motion to Revoke Certification.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylva­ nia corporation, has been engaged in providing skilled and intermediate health care services at its long-term care facility in Philadelphia, Pennsylvania. During the 12-month period preceding the issuance of the com­ plaint, the Respondent in conducting its business oper­ ations described above derived gross revenues in ex­ cess of $100,000 and purchased and received goods valued at more than $50,000 directly from points out- side 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 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 July 3, 1996, the Union was certified on July 12, 1996, as the exclusive collec­ tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time Licensed Prac­ tical Nurses employed at the Employer’s 3609 Chestnut Street, Philadelphia, Pennsylvania, facil­ ity, excluding all other employees, Registered Nurses, 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 Since July 26, 1996, the Union has requested the Respondent to bargain and since that date, the Re­ spondent has refused. We find that this refusal con­ stitutes 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 July 26, 1996,2 to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the 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. 2 The complaint inadvertently lists the date as July 26, 1995. 322 NLRB No. 71 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent has engaged in unfair labor practices af­ fecting 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, The New Ralston House of the University of Pennsylvania, Philadelphia, Pennsylvania, its offi­ cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District 1199C, Na­ tional Union of Hospital and Health Care Employees, AFSCME, AFL–CIO as the exclusive bargaining rep­ resentative 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 at the Employer’s 3609 Chestnut Street, Philadelphia, Pennsylvania, facil­ ity, excluding all other employees, Registered Nurses, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Philadelphia, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’3 Copies of 3 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.’’ the notice, on forms provided by the Regional Director for Region 4 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 16, 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. October 31, 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 ATIONAL 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 1199C, National Union of Hospital and Health Care Employ­ ees, AFSCME, AFL–CIO as the exclusive representa­ tive 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: NEW RALSTON HOUSE 3 All full-time and regular part-time Licensed Prac- cluding all other employees, Registered Nurses, tical Nurses employed by us at our 3609 Chestnut guards and supervisors as defined in the Act. Street, Philadelphia, Pennsylvania, facility, ex- THE NEW RALSTON HOUSE OF THE UNI­ VERSITY OF PENNSYLVANIA