Grancare, Inc.

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. Grancare, Inc. and Local 332, International Brotherhood of Teamsters, AFL-CIO. Case 7-CA- 37817 June 5, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Pursuant to a charge filed on October 24, 1995, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on November 22, 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 7-RC- 20588.¹ (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 May 6, 1996, the General Counsel filed a Motion for Summary Judgment with the Board. On May 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 and response the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board's determination in the representation proceeding that the Respondent's registered nurses (RNs) and licensed practical nurses (LPNs) are not supervisors. 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 1 The complaint also alleges that the Respondent violated Sec. 8(a)(5) and (1) of the Act by making certain unilateral changes following the Union's certification. The parties have entered into an informal settlement agreement resolving those allegations, however, which is conditioned on the outcome of the allegations regarding the Respondent's refusal to recognize and bargain with the Union. The unilateral-change allegations are therefore not at issue in this summary judgment proceeding. 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.² On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with various offices and facilities within the State of Michigan, including Heritage Manor Nursing Home in Flint, Michigan, has been engaged in the operation of nursing care centers for the elderly and disabled. During the calendar year ending December 31, 1994, the Respondent, in conducting its operations, realized gross revenues in excess of $1 million and purchased and received medical supplies and other goods and materials valued in excess of $50,000 at its Flint facility and other Michigan facilities directly from points located outside the State of Michigan. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 21, 1995, the Union was certified on September 15, 1995, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All registered nurses (RNs) and licensed practical nurses (LPNs), including charge nurses, employed by Respondent at its Flint facility; but excluding all office clerical employees, guards 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 About October 10 and 12, 1995, the Union requested the Respondent to bargain and, since about 2 Member Cohen did not participate in the underlying representation case, and he does not necessarily agree with that decision. However, he agrees with his colleagues that the Respondent has raised no new issues in this "technical" 8(a)(5) case. Accordingly, he concurs in this Decision and Order. 321 NLRB No. 61 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD October 12, 1995, 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 12, 1995, 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 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, Grancare, Inc., Flint, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 332, International Brotherhood of Teamsters, 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 registered nurses (RNs) and licensed practical nurses (LPNs), including charge nurses, employed by Respondent at its Flint facility; but excluding all office clerical employees, guards and supervisors as defined by the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Flint, Michigan, copies of the attached notice marked "Appendix."3 Copies of the notice, on forms provided by the Regional Director for Region 7 after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, 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 Respondent at any time since October 24, 1995. (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. June 5, 1996 William B. Gould IV, Chairman Margaret A. Browning, Member Charles I. Cohen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3If 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 Local 332, International Brotherhood of Teamsters, AFL-CIO, as the exclusive representative of the employees in the bargaining unit. GRANCARE, INC. 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 registered nurses (RNs) and licensed practical nurses (LPNs), including charge nurses, employed by us at our Flint facility; but excluding all office clerical employees, guards and supervisors as defined by the Act, and all other employees. GRANCARE, INC.