Care West Regency - La Mariposa

CARE WEST REGENCY-LA MARIPOSA Care Enterprises, Inc., d/b/a Care West Regency-La Mariposa and Hospital and Health Care Workers Union, Local 250, Service Employees International Union, AFL-CIO. Case 20-CA-26397 April 19, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING Upon a charge filed on November 4, 1994, the General Counsel of the National Labor Relations Board issued an amended complaint on February 10, 1995, 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 certification in Case 20-RC-16849. (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 amended complaint, and asserting affirmative defenses. On March 20, 1995, the General Counsel filed a Motion for Summary Judgment with the Board. On March 22, 1995, 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 April 12, 1995, the Respondent filed a response. The Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and response to the Notice to Show Cause, the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of its arguments in support of its objections to the election and its contention that the Board should have opened and counted one of the challenged ballots in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. 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 Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation, with an office and place of business in Fairfield, California, is engaged in the operation of a residential skilled nursing care facility. During the 12-month period ending September 30, 1992, the Respondent, in conducting its operations, received gross revenues in excess of $100,000 and purchased and received goods valued in excess of $5000 which originated 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 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 December 15, 1992, the Union was certified on September 14, 1994, as the collective-bargaining representative of the employees in the following appropriate unit: All full time and regular part-time certified nurses aides, housekeeping aides, laundry aides, dietary aides, cooks and janitors employed by Respondent at its facility located at 1244 Travis, Fairfield, California; excluding all other employees, professional employees, licensed vocational nurses, 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 About October 12, 1994, the Union, by letter, requested the Respondent to bargain and, since about October 25, 1994, the Respondent has 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 October 25, 1994, 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 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 Section 8(a)(5) and (1) of the Act, we shall order it to 316 NLRB No. 196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the certification as beginning the date the Respondent 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, Care Enterprises Inc., d/b/a Care West Regency-La Mariposa, Fairfield, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Hospital and Health Care Workers Union, Local 250, Service Employees International Union, 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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full time and regular part-time certified nurses aides, housekeeping aides, laundry aides, dietary aides, cooks and janitors employed by Respondent at its facility located at 1244 Travis, Fairfield, California; excluding all other employees, professional employees, licensed vocational nurses, office clerical employees, guards and supervisors as defined in the Act. (b) Post at its facility in Fairfield, California, copies of the attached notice marked "Appendix."¹ Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Hospital and Health Care Workers Union, Local 250, Service Employees International Union, 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 certified nurses aides, housekeeping aides, laundry aides, dietary aides, cooks and janitors employed by us at our facility located at 1244 Travis, Fairfield, California; excluding all other employees, professional employees, licensed vocational nurses, office clerical employees, guards and supervisors as defined in the Act. CARE ENTERPRISES, INC., D/B/A CARE WEST REGENCY-LA MARIPOSA 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."