Attleboro Nursing & Rehabilitation Center

1 325 NLRB No. 146 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. Attleboro Associates, Ltd. and Attleboro, Inc., Indi- vidually and as Partners d/b/a Attleboro Nurs- ing & Rehabilitation Center and Teamsters Local Union No. 628, International Brother- hood of Teamsters, AFL–CIO. Case 4–CA– 26930 May 18, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on March 10, 1998, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on March 12, 1998, 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 4–RC– 19272. (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 April 6, 1998, the Acting General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On April 8, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. 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 the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of its contentions that its LPN charge nurses are statutory supervisors as defined by the National Labor Relations Act and, therefore, cannot comprise an appropriate bargaining unit. 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Pennsylvania limited partnership composed of Attle- boro Associates, Ltd. (AAL) and Attleboro, Inc. (AI), a Pennsylvania corporation and its general partner, and has been engaged in the operation of a nursing home in Langhorne, Pennsylvania (herein called the Home). During calendar year 1997, the Respondent, in con- ducting its business operations, derived gross revenues in excess of $100,000 and purchased and received at the Home goods and services valued in excess of $50,000 directly from points outside the Common- wealth of Pennsylvania. 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 has been a health care institu- tion 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 January 30, 1998, the Union was certified on February 10, 1998, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time Licensed Prac- tical Nurses employed at the Home, excluding all other employees, Registered Nurses, professional employees, 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 On or about February 11, 1998, the Union, by letter, requested that the Respondent recognize and bargain, and, since February 27, 1998, the Respondent has failed and refused. 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 February 27, 1998, to rec- ognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 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.’’ 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, Attleboro Associates, Ltd. and Attleboro, Inc., Individually and as Partners d/b/a Attleboro Nurs- ing & Rehabilitation Center, Langhorne, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union No. 628, International Brotherhood of Teamsters, 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, 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 Home, excluding all other employees, Registered Nurses, professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Langhorne, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondent’s au- thorized 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 February 27, 1998. (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. May 18, 1998 llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Regional Director’s decision in which she found that the Employer’s LPN charge nurses were not supervisors within the meaning of the Act. Accordingly, I dissent from my colleagues’ grant- ing the Acting General Counsel’s Motion for Summary Judgment and their finding that the Employer violated Section 8(a)(5) and (1) of the Act in this certification- testing proceeding. Dated, Washington, D.C. May 18, 1998 llllllllllllllllll J. Robert Brame III, Member NATIONAL LABOR RELATIONS BOARD 3 ATTLEBORO 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 Teamsters Local Union No. 628, International Brotherhood of Teamsters, 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 Licensed Prac- tical Nurses employed by us, excluding all other employees, Registered Nurses, professional em- ployees, guards and supervisors as defined in the Act. ATTLEBORO ASSOCIATES, LTD. AND AT- TLEBORO, INC., INDIVIDUALLY AND AS PARTNERS D/B/A ATTLEBORO NURSING & REHABILITATION CENTER