Orange Blossom Manor, Inc.

1 325 NLRB No. 85 1 Although the Respondent denies paras. 2(b) and (c) of the com- plaint which describe the jurisdictional nature of its business, the Re- spondent stipulated to that description in the underlying representa- tion proceeding. Accordingly, and as the Respondent admits the re- maining jurisdictional allegations in the complaint, in agreement with the General Counsel, we find that the Respondent’s denial does not raise any jurisdictional issue warranting a hearing in this proceeding. 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. Orange Blossom Manor, Inc. and UNITE! Union of Needletrades, Industrial and Textile Employ- ees, AFL–CIO, CLC. Case 12–CA–19209 March 26, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME Pursuant to a charge filed on December 15, 1997, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on Jan- uary 15, 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 12–RC– 7995. (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, and alleging af- firmative defenses. On February 26, 1998, the General Counsel filed a Motion for Summary Judgment. On February 27, 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 answer1 the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board’s inclusion of a challenged bal- lot in the representation proceeding and the Union’s status as the employees’ collective-bargaining rep- resentative. 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 located in Pem- broke Park, Florida, has been engaged in the business of operating an assisted living facility providing care for the elderly. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its busi- ness operations, derived gross revenues in excess of $100,000 and during the same period of time, the Re- spondent, in conducting its business operations, pur- chased and received at its Pembroke Park, Florida fa- cility goods and materials valued in excess of $10,000 directly from points located outside the State of Flor- ida. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(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 September 25, 1996, the Union was certified on November 25, 1997, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time CNAs, activity employees, housekeeping employees, laundry maintenance, and dietary employees, waiters and waitresses, driver, and receptionist employees em- ployed by the Respondent at its facility located at 3535 SW 52nd Avenue, Pembroke Park, Florida; excluding all other employees including LPNs, technicians, professional employees, office clerical 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 December 1, 1997, the Union, by letter, requested the Respondent to meet and bargain, and, since on or about December 1, 1997, the Respondent 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.’’ has failed and refused. We find that this refusal con- stitutes an unlawful refusal to meet and bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after December 1, 1997, to meet 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. 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 meet and bargain on request with the Union and, if an understanding is reached, to em- body the understanding 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, Orange Blossom Manor, Inc., Pembroke, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to meet and bargain with UNITE! Union of Needletrades, Industrial and Textile Employees, AFL–CIO, CLC as the exclusive bargain- ing 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, meet and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, em- body the understanding in a signed agreement: All full-time and regular part-time CNAs, activity employees, housekeeping employees, laundry maintenance, and dietary employees, waiters and waitresses, driver, and receptionist employees em- ployed by the Respondent at its facility located at 3535 SW 52nd Avenue, Pembroke Park, Florida; excluding all other employees including LPNs, technicians, professional employees, office clerical employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Pembroke Park, Florida, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 12 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 December 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. March 26, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 ORANGE BLOSSOM MANOR, INC. 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 UNITE! Union of Needletrades, Industrial and Textile Employees, 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, meet and 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 CNAs, activity employees, housekeeping employees, laundry maintenance, and dietary employees, waiters and waitresses, driver, and receptionist employees em- ployed by us at our facility located at 3535 SW 52nd Avenue, Pembroke Park, Florida; excluding all other employees including LPNs, technicians, professional employees, office clerical employees, guards and supervisors as defined in the Act. ORANGE BLOSSOM MANOR, INC.