East Village Nursing Rehabilitation Center

1 324 NLRB No. 93 1 In its ‘‘Response to the Notice to Show Cause and Request for Reconsideration,’’ the Respondent requests reconsideration on the grounds that the Regional Director failed to consider the Respond- ent’s argument that the charge nurses failed to exercise their author- ity to discipline because they were also concerned that this might impede the organizing efforts. Further, the Respondent asserts that there is newly discovered evidence consisting of a transcript of the preliminary injunction hearing in Maryleen LaRoche v. Emil Jean Andre, Middlesex Superior Court Civil Action No. 96-3011, in which a charge nurse employed by the Respondent sought a prelimi- nary injunction against a former employee of the Respondent. The Respondent contends that the transcript includes testimony by the charge nurse that she was the former employee’s immediate super- visor, contrary to testimony given at the representation hearing, and that the testimony also supports and corroborates the Respondent’s argument that nurses possessed authority to discipline, but did not exercise that authority because they were afraid of retaliation. As the Respondent acknowledges however, the Regional Director, in her Decision and Direction of Election, found that the charge nurses’ motives for refusing to exercise authority were irrelevant. The Re- gional Director reasoned that, in light of the Employer’s failure to discipline charge nurses for failing to exercise the supervisory au- thority that the Employer attempted to confer on them, the Employer has done nothing more than confer on them ‘‘paper authority’’ to discipline, which is insufficient to establish supervisory status. Thus, even assuming arguendo that the transcript testimony constitutes newly discovered evidence, it would not warrant a hearing. 2 Member Higgins notes that he dissented and would have granted review in the underlying case. However, he agrees with his col- leagues that the Respondent has raised no new issues in this ‘‘tech- nical’’ 8(a)(5) proceeding warranting a hearing and that summary judgment is appropriate. 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-Massachusetts, Inc. d/b/a East Village Nursing and Rehabilitation Center and Service Employees International Union, Local 285, AFL–CIO. Case 1–CA–35233 September 30, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge and amended charge filed on May 13 and July 9, 1997, the General Counsel of the National Labor Relations Board issued a complaint on July 15, 1997, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the National Labor Re- lations Act by refusing the Union’s request to bargain following the Union’s certification in Case 1–RC– 20533. (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 filed an answer admitting in part and denying in part the allegations in the complaint. On August 19, 1997, the General Counsel filed a Motion for Summary Judgment. On August 20, 1997, 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 and request for reconsideration. 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 its contention in the representation pro- ceeding that the unit charge nurses are statutory super- visors. 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.1 We therefore find that the Respondent has not raised any representation issue that is properly lit- igable 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 Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in Lexington, Massachusetts, has been engaged in the operation of a nursing home. Annually, the Respondent, in conduct- ing its business operations, derives gross revenues in excess of $100,000 and purchases and receives at its Lexington facility goods valued in excess of $5000 di- rectly from points outside the Commonwealth of Mas- sachusetts. 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 February 27, 1997, the Union was certified on March 10, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Respondent at its Lexington, Massachusetts facility, including per diems, but excluding medi- cal records employees, all other employees, mana- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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.’’ gerial employees, guards, and supervisors as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about May 1, 1997, the Union has requested the Respondent to bargain and, since about May 2, 1997, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after about May 2, 1997, 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). ORDER The National Labor Relations Board orders that the Respondent, Beverly Enterprises-Massachusetts, Inc. d/b/a East Village Nursing and Rehabilitation Center, Lexington, Massachusetts, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union, Local 285, AFL–CIO, as the ex- clusive 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 registered nurses and licensed practical nurses employed by the Respondent at its Lexington, Massachusetts facility, including per diems, but excluding medi- cal records employees, all other employees, mana- gerial employees, guards, and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Lexington, Massachusetts, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 1 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 May 13, 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. September 30, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 EAST VILLAGE NURSING & REHABILITATION CENTER 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 Service Em- ployees International Union, Local 285, 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 employed by us at our Lexington, Massachusetts facility, in- cluding per diems, but excluding medical records employees, all other employees, managerial em- ployees, guards, and supervisors as defined in the Act. BEVERLY ENTERPRISES-MASSACHU- SETTS, INC. D/B/A EAST VILLAGE NURS- ING AND REHABILITATION CENTER