Carehaven of Point Pleasant

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 Carehaven of Point Pleasant and District 1199, the Health Care and Social Service Union, SEIU, AFL–CIO. Case 9–CA–34204 November 15, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND FOX Pursuant to a charge filed on September 17, 1996, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on September 20, 1996, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 9–RC– 16667 as the exclusive bargaining representative of the Respondent’s licensed practical nurses (LPNs) and reg­ istered nurses (RNs). (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 10, 1996, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On October 15, 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 October 29, 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 its contention in the represen­ tation proceeding that the LPNs and RNs are 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 corporation, has been engaged in the operation of an intermediate care level nursing home at Point Pleasant, West Vir­ ginia. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its op­ erations, derived gross revenues in excess of $100,000 and purchased and received at its Point Pleasant, West Virginia facility goods valued in excess of $10,000 which were shipped directly 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 a health care facility 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 June 20, 1996, the Union was certified on June 28, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time licensed prac­ tical nurses (LPNs) and registered nurses (RNs) employed by the Employer, excluding the admin­ istrative nurse/MDS coordinator, all other employ­ ees, and all 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 August 7, 1996, the Union requested the Re­ spondent to bargain, and, since August 9, 1996, the Respondent 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 August 9, 1996, to recog­ nize and bargain with the Union as the exclusive col- 1 Member Fox notes that she 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 and that summary judgment is therefore appropriate. 322 NLRB No. 87 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective-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 recognize and bargain on request with the Union, and, if an understanding is reached, to embody the understanding 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 Carehaven of Point Pleasant, Point Pleasant, West Vir­ ginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Failing and refusing to recognize and bargain with District 1199, the Health Care and Social Service Union, SEIU, AFL–CIO 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, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and condi­ tions of employment and, if an understanding is reached, embody the understanding in a signed agree­ ment: All full-time and regular part-time licensed prac­ tical nurses (LPNs) and registered nurses (RNs) employed by the employer, excluding the admin­ istrative nurse/MDS coordinator, all other employ­ ees, and all guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Point Pleasant, West Virginia, copies of the attached notice marked ‘‘Appendix.’’2 Copies of 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 September 17, 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. November 15, 1996 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.’’ 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 fail and refuse to recognize and bar- gain with District 1199, the Health Care and Social Service Union, SEIU, AFL–CIO as the exclusive rep­ resentative of the employees in the bargaining unit. CAREHAVEN OF POINT PLEASANT 3 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, recognize and 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) and registered nurses (RNs) employed by us, excluding the administrative nurse/MDS coordinator, all other employees, and all guards and supervisors as defined in the Act. GLENMARK ASSOCIATES, INC. D/B/A CAREHAVEN OF POINT PLEASANT