Cadillac Nursing Home

1 325 NLRB No. 225 1 Members Hurtgen and Brame did not participate in the underly- ing representation case. 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. Cadillac Nursing Home and Local 79, Service Em- ployees International Union. Case 7–CA–40882 July 30, 1998 DECISION AND ORDER BY MEMBERS FOX, HURTGEN, AND BRAME Pursuant to a charge filed on April 17, 1998, the Acting General Counsel of the National Labor Rela- tions Board issued a complaint on May 15, 1998, al- leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 7–RC–21147. (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 complaint. On June 15, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On June 18, 1998, 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. 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. 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.1 See Pitts- burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Sum- mary Judgment. 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 Detroit, Michi- gan, has been engaged in the operation of a nursing home providing inpatient medical care. During the year ending December 31, 1997, the Respondent, in con- ducting its business operations, derived gross revenues in excess of $100,000 and purchased and received at its Detroit facility goods valued in excess of $50,000 from other enterprises located within the State of Michigan, and had those goods shipped directly to its Detroit facility. We find that the Respondent is an em- ployer 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 November 6, 1997, the Union was certified on November 14, 1997, 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 (LPNs) employed by the Employer at its facility located at 1533 Cadillac Boulevard, Detroit, Michigan; but excluding professional em- ployees, office clerical employees, employees al- ready represented by labor organizations, and 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 March 18, 1998, the Union has requested the Respondent to bargain and, since April 2, 1998, 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 April 2, 1998, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the 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 2 DECISIONS OF THE 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.’’ 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, Cadillac Nursing Home, Detroit, Michi- gan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 79, Service Em- ployees International Union, AFL–CIO, CLC 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 (LPNs) employed by the Employer at its facility located at 1533 Cadillac Boulevard, Detroit, Michigan; but excluding professional em- ployees, office clerical employees, employees al- ready represented by labor organizations, and guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Detroit, Michigan, copies of the at- tached notice marked ‘‘Appendix.’’2 Copies of the no- tice, on forms provided by the Regional Director for Region 7 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 April 2, 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. July 30, 1998 llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Peter J. Hurtgen, Member llllllllllllllllll J. Robert Brame III, 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 79, Serv- ice Employees International Union, AFL–CIO, CLC 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: 3 CADILLAC NURSING HOME All full-time and regular part-time licensed prac- tical nurses (LPNs) employed by us at our facility located at 1533 Cadillac Boulevard, Detroit, Michigan; but excluding professional employees, office clerical employees, employees already rep- resented by labor organizations, and guards and supervisors as defined in the Act. CADILLAC NURSING HOME