VIP Health Services

1 324 NLRB No. 54 1 Although the Respondent also filed objections to conduct alleg- edly affecting the results of the election in the underlying representa- tion proceeding, and those objections were overruled, the Respond- ent does not reassert those objections in the instant test-of-certifi- cation proceeding as a basis for its refusal to bargain. 2 Having granted the General Counsel’s Motion for Summary Judgment, we find it unnecessary to pass on the motions made by the Charging Party Union and the General Counsel to strike all or portions of the Respondent’s answer. Member Higgins notes that he was not on the panels that ruled on the Respondent’s requests for review and reconsideration of the Regional Director’s determination that the Respondent’s field nurses are not supervisors. Nevertheless, he agrees with his colleagues that the Respondent has raised nothing new in this ‘‘technical’’ 8(a)(5) proceeding warranting a hearing, and that summary judgment is therefore appropriate. 3 The Respondent stipulated to the foregoing description of Re- spondent’s business in the underlying representation proceeding. 4 Although the Respondent’s answer denies the allegations in the complaint regarding the election and certification, the Respondent’s response to the Motion for Summary Judgment indicates that the an- swer denies these allegations based solely on the Respondent’s con- tention that the unit is inappropriate. In any event, the allegations are fully supported by the exhibits from the underlying representation proceeding which are attached to the General Counsel’s motion. 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. VIP Health Services, Inc. and Local 2, Federation of Nurses, United Federation of Teachers, American Federation of Teachers, AFL–CIO. Case 29–CA–20921 August 25, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on April 17, 1997, the General Counsel of the National Labor Relations Board issued an amended complaint on June 13, 1997, 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 bargain following the Union’s certification in Case 29–RC–8262. (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 amended complaint. On July 14, 1997, the General Counsel filed a Mo- tion to Strike Portion of Respondent’s Answer and for Summary Judgment. On July 17, 1997, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 28, 1997, the Union filed a letter in support of the General Counsel’s Motion for Summary Judgment and requesting that the Respond- ent’s answer be stricken in its entirety and that it be granted attorneys’ fees and costs. On August 13, 1997, the Respondent filed a response. Ruling on Motion for Summary Judgment In its answer and response, the Respondent attacks the validity of the certification in the underlying rep- resentation proceeding on the ground that its registered field nurses are supervisors within the meaning of Sec- tion 2(11) of the Act and that the certified unit is therefore inappropriate.1 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a New York corporation engaged in providing skilled nursing care to sick and infirm and aged persons.3 During the 12-month period preceding the issuance of the complaint, the Respondent, in the course and conduct of business, derived gross revenues valued in excess of $100,000 and purchased and re- ceived at its Richmond Hill, New York facility goods and materials valued in excess of $5000 directly from points located outside the State of New York. 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 organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held November 6, 1996, the Union was certified on November 27, 1996, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit:4 All registered nurses authorized to practice as an RN, including intake nurses, senior clinical coor- dinator, clinical coordinators, and field nurses; ex- cluding all other employees, office clerical em- ployees, supervisory field nurses, quality assur- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Although the Respondent’s answer denies the allegations that the Union requested bargaining, a copy of the Union’s letters are at- tached as exhibits to the General Counsel’s motion, and the Re- spondent has not disputed their authenticity in response to the Mo- tion for Summary Judgment. Although the Respondent’s answer also denies the allegation that the Respondent has refused the Union’s re- quests to bargain, nowhere in its answer or response does the Re- spondent contend that it has offered to meet and bargain with the Union since its initial, December 16, 1996 request. On the contrary, it is clear from the other denials in Respondent’s answer and the ar- guments in Respondent’s response, that the Respondent is in fact re- fusing to bargain with the Union in order to test the certification. Accordingly, we find that no issues warranting a hearing are raised by the Respondent’s denials of the foregoing allegations. See Indeck Energy Services, 318 NLRB 321 (1995). 6 As indicated above, the Charging Party Union has also requested that it be granted attorneys’ fees and costs in this proceeding. We deny the Union’s request inasmuch as we do not find that the Re- spondent’s position regarding the certification is frivolous. See gen- erally Frontier Hotel & Casino, 318 NLRB 857 (1995), enf. denied in relevant part 155 LRRM 2833 (D.C. Cir. July 18, 1997). 7 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.’’ ance supervisor, compliance supervisor, assistant supervisor-clinical coordinator, assistant super- visor-education, supervisor-public health nurse, director/administrator, 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 December 16, 1996, and on various dates thereafter, the Union requested the Respondent to bar- gain, and, since December 16, 1996, the Respondent has refused.5 We 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 December 16, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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).6 ORDER The National Labor Relations Board orders that the Respondent, VIP Health Services, Inc., Richmond Hill and Queens, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 2, Federation of Nurses, United Federation of Teachers, American Fed- eration of Teachers, AFL–CIO, as the exclusive bar- gaining representative of the employees in the bargain- ing 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 registered nurses authorized to practice as an RN, including intake nurses, senior clinical coor- dinator, clinical coordinators, and field nurses; ex- cluding all other employees, office clerical em- ployees, supervisory field nurses, quality assur- ance supervisor, compliance supervisor, assistant supervisor-clinical coordinator, assistant super- visor-education, supervisor-public health nurse, director/administrator, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facilities in Richmond Hill and Queens, New York, copies of the attached notice marked ‘‘Appen- dix.’’7 Copies of the notice, on forms provided by the Regional Director for Region 29 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. In the event 3 VIP HEALTH SERVICES that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, 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 Respondent at any time since April 17, 1997. (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. August 25, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., 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 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 Local 2, Fed- eration of Nurses, United Federation of Teachers, American Federation of Teachers, AFL–CIO, as the exclusive representative of the employees in the bar- gaining 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 registered nurses authorized to practice as an RN, including intake nurses, senior clinical coor- dinator, clinical coordinators, and field nurses; ex- cluding all other employees, office clerical em- ployees, supervisory field nurses, quality assur- ance supervisor, compliance supervisor, assistant supervisor-clinical coordinator, assistant super- visor-education, supervisor-public health nurse, director/administrator, guards, and supervisors as defined in the Act. VIP HEALTH SERVICES, INC.