Rainbow Nursing Center

1 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. Health Resources of Bridgeton, Inc. d/b/a Rainbow Nursing Center and United Food and Commer­ cial Workers Union, Local 56, AFL–CIO. Case 4–CA–25456 May 8, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on November 18, 1996,1 the General Counsel of the National Labor Relations Board issued a complaint on December 20, 1996, al­ leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 4–RC–18731. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu­ lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an­ swer admitting in part and denying in part the allega­ tions in the complaint. On April 8, 1997, the General Counsel filed a Mo­ tion for Summary Judgment. On April 9, 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 April 30, 1997, the Re­ spondent filed a response. Ruling on Motion for Summary Judgment In its answer, the Respondent admits its refusal to bargain but contends that the certification was improp­ erly issued because there was another petition pending resolution when the underlying petition was filed, and the Regional Director improperly processed the peti­ tion over the Respondent’s objections, thus denying it the right to communicate directly with its employees and make changes in employment conditions.2 1 Although the Respondent’s answer to the complaint denies hav­ ing knowledge or information sufficient to form a belief as to when the charge was filed or served, a copy of the charge and an affidavit of service of the charge are attached to the General Counsel’s mo­ tion and the Respondent has not challenged the authenticity of those documents. 2 In addition to denying that the Union’s certification was proper, the Respondent also asserts as an affirmative defense that the charges referred to in the complaint are barred by laches. However, the Respondent does not explain how or why that doctrine has any relevance to this proceeding or excuses its admitted refusal to bar- gain with the Union. In these circumstances, we find that the Re­ spondent’s affirmative defenses raise no issues sufficient to warrant denial of the General Counsel’s Motion for Summary Judgment in this 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.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New Jersey corporation with a facility in Pittsgrove, New Jersey, has been engaged in the operation of a skilled residen­ tial nursing home. During the 12-month period preced­ ing the issuance of the complaint, the Respondent in conducting its business operations described above, re­ ceived gross revenues in excess of $100,000 and pur­ chased and received goods valued in excess of $50,000 directly from points outside the State of New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza­ tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held September 20, 1996, the Union was certified on October 1, 1996, as the exclu­ sive collective-bargaining representative of the employ­ ees in the following appropriate unit: All full-time and regular part-time nurses aides and dietary employees employed at the Employ­ er’s Pittsgrove, New Jersey, facility, excluding registered nurses, licensed practical nurses, laun­ dry and housekeeping employees, cooks, activity aides, office clerical employees, casual employees, professional employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. 3 Member Fox did not participate in the underlying representation case. However, she agrees with her colleagues that the Respondent has raised no new issues in this ‘‘technical’’ 8(a)(5) proceeding war- ranting a hearing. 323 NLRB No. 116 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Refusal to Bargain Since November 7 and December 5, 1996, the Union has requested the Respondent to bargain and, since December 6, 1996, 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 December 6, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec­ tion 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 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, Health Resources of Bridgeton, Inc. d/b/a Rainbow Nursing Center, Pittsgrove, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Com­ mercial Workers Union, Local 56, AFL–CIO as the ex­ clusive 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 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 nurses aides and dietary employees employed at the Employ­ er’s Pittsgrove, New Jersey, facility, excluding registered nurses, licensed practical nurses, laun­ dry and housekeeping employees, cooks, activity aides, office clerical employees, casual employees, professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Pittsgrove, New Jersey, copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 4 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 November 18, 1996. (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. May 8, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 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.’’ RAINBOW NURSING CENTER 3 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 United Food and Commercial Workers Union, Local 56, 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 nurses aides and dietary employees employed at our Pittsgrove, New Jersey, facility, excluding registered nurses, licensed practical nurses, laundry and house- keeping employees, cooks, activity aides, office clerical employees, casual employees, professional employees, guards and supervisors as defined in the Act. HEALTH RESOURCES OF BRIDGETON, INC. D/B/A RAINBOW NURSING CENTER