Regency Health Services d/b/a Linda Mar Health Care & Rehabilitation Center

1 325 NLRB No. 25 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. Regency Health Services d/b/a Linda Mar Health Care and Rehabilitation Center and Health Care Workers Union, Local 250, Service Em- ployees International Union, AFL–CIO. Case 20–CA–28016 December 9, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on September 10, 1997, the General Counsel of the National Labor Relations Board issued a complaint on October 2, 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 cer- tification in Case 20–RC–17221. (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 com- plaint, and asserting affirmative defenses. On October 27, 1997, the General Counsel filed a Motion for Summary Judgment and Memorandum in support. On October 28, 1997, 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 November 17, 1997, 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 certifi- cation on the basis of its objections to conduct alleged to have affected the results of the election 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. 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, a corporation with an office and place of business in Pacifica, Cali- fornia, has been engaged in the operation of a nursing home and rehabilitation facility. During the calendar year ending December 31, 1996, the Respondent, in conducting its business operations, derived gross reve- nues in excess of $250,000 and purchased and received at its Pacifica, California facility goods valued in ex- cess of $5,000 which originated from points outside the State of California 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 institution within the meaning of Section 2(14) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 17, 1997, the Union was certified on July 17, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part time certified nurs- ing assistants (CNAs), restorative nursing assist- ants (RNAs,) dietary employees, laundry employ- ees, and housekeeping employees; excluding all other employees, managerial employees, profes- sional employees, and contract 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 About August 5 and 7, 1997, the Union, by letter, requested the Respondent to bargain, and, since about August 5, 1997, the Respondent has failed and refused to do so. We find that this failure and refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after August 5, 1997, to recognize and bargain with the Union as the exclu- sive collective-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. 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.’’ 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, Regency Health Services d/b/a Linda Mar Health Care and Rehabilitation Center, Pacifica, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Health Care Workers Union, Local 250, Service Employees International Union, AFL–CIO, as the exclusive bargaining rep- resentative 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 certified nurs- ing assistants (CNAs), restorative nursing assist- ants (RNAs), dietary employees, laundry employ- ees, and housekeeping employees; excluding all other employees, managerial employees, profes- sional employees, and contract employees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Pacifica, California, copies of the at- tached notice marked ‘‘Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Region 20, 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 August 5, 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. December 9, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, 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 Health Care Workers Union, Local 250, Service Employees Inter- national Union, AFL–CIO, as the exclusive representa- tive 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 certified nurs- ing assistants (CNAs), restorative nursing assist- 3 LINDA MAR HEALTH CARE & REHABILITATION CENTER ants (RNAs), dietary employees, laundry employ- ees, and housekeeping employees; excluding all other employees, managerial employees, profes- sional employees, and contract employees, guards, and supervisors as defined in the Act. REGENCY HEALTH SERVICES D/B/A LINDA MAR HEALTH CARE AND REHA- BILITATION CENTER