Silver Oaks Nursing Center

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 errors so that corrections can be included in the bound volumes. Overlook Nursing Center Associates, a Pennsylvania Limited Partnership d/b/a Silver Oaks Nursing Center and Service Employees International Union, Local 585, AFL-CIO, CLC. Case 6-CA-27730 February 29, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Upon a charge and amended charge filed on November 29 and December 8, 1995, the General Counsel of the National Labor Relations Board issued a complaint on December 11, 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 6- RC-11224. (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 complaint. On February 6, 1996, the General Counsel filed a Motion for Summary Judgment. On February 8, 1996, 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 recognize and bargain with the Union, but attacks the validity of the certification on the basis of its objections to the election. 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 At all material times, the Respondent, a Pennsylvania limited partnership with an office and facility in New Castle, Pennsylvania, has been engaged in the operation of a nursing home. During the 12-month period ending October 31, 1995, the Respondent, in conducting its business operations, derived gross revenues in excess of $100,000 and purchased and received at its New Castle, Pennsylvania facility goods valued in excess of $50,000 directly from points located outside the Commonwealth 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 a health care institution 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 August 25, 1995, the Union was certified on November 13, 1995, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time service and maintenance employees, including nursing aides, certified nursing assistants, activities aides, dietary employees, housekeeping employees, laundry employees and maintenance employees, employed by Overlook Nursing Center Associates, A Pennsylvania Limited Partnership d/b/a Silver Oaks Nursing Center at its New Castle, Pennsylvania, facility; excluding all licensed practical nurses, registered nurses, office clerical employees, confidential employees, managerial employees and guards, professional employees and supervisors as defined by the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about November 16, 1995, the Union, by letter, requested the Respondent to bargain, and since November 27, 1995, the Respondent has failed and refused. We find that this failure and 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 November 27, 1995, to recognize and bargain with the Union as the exclusive 320 NLRB No. 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 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); and 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, Overlook Nursing Center Associates, a Pennsylvania Limited Partnership d/b/a Silver Oaks Nursing Center, New Castle Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Service Employees International Union, Local 585, 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, recognize 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, embody the understanding in a signed agreement: All full-time and regular part-time service and maintenance employees, including nursing aides, certified nursing assistants, activities aides, dietary employees, housekeeping employees, laundry employees and maintenance employees, employed by Overlook Nursing Center Associates, A Pennsylvania Limited Partnership d/b/a Silver Oaks Nursing Center at its New Castle, Pennsylvania, facility; excluding all licensed practical nurses, registered nurses, office clerical employees, confidential employees, managerial employees and guards, professional employees and supervisors as defined by the Act, and all other employees. (b) Post at its facility in New Castle, Pennsylvania, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 6, 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. Dated, Washington, D.C. February 29, 1996 William B. Gould IV, Chairman Margaret A. Browning, Member Charles I. Cohen, Member (SEAL) 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." 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 Service Employees International Union, Local 585, 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, recognize and bargain with the Union and put in writing and sign any agreement SILVER OAKS NURSING CENTER reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time service and maintenance employees, including nursing aides, certified nursing assistants, activities aides, dietary employees, housekeeping employees, laundry employees and maintenance employees, employed by us at our New Castle, Pennsylvania, facility; excluding all licensed practical nurses, registered nurses, office clerical employees, confidential employees, managerial employees and guards, professional employees and supervisors as defined by the Act, and all other employees. OVERLOOK NURSING CENTER ASSOCI- ATES, A PENNSYLVANIA LIMITED PART- NERSHIP d/b/a SILVER OAKS NURSING CENTER