Lynwood Healthcare 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. Beverly Enterprises—Minnesota, Inc. d/b/a Lynwood Health Care Center and Minnesota’s Health Care Union, Local 113, SEIU, AFL– CIO, CLC. Case 18–CA–14467 July 3, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on May 12, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 16, 1997, 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 cer­ tification in Case 18–RC–16062 as the exclusive bar- gaining representative of the registered nurses (RNs) and licensed practical nurses (LPNs) employed at the Respondent’s Fridley, Minnesota facility. (Official no­ tice is taken of the ‘‘record’’ in the representation pro­ ceeding as defined in the Board’s Rules and Regula­ tions, 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 June 3, 1997, the General Counsel filed a Mo­ tion for Summary Judgment. On June 5, 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 June 19, 1997, the Respond­ ent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer­ tification on the basis of its contentions in the rep­ resentation proceeding that the RNs and LPNs em­ ployed at the Respondent’s Fridley, Minnesota facility are statutory supervisors as defined in Section 2(11) of the Act. 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, has been engaged in the operation of a skilled residential nursing facility in Fridley, Min­ nesota. During the calendar year ending December 31, 1996, the Respondent, in conducting its business oper­ ations, derived gross revenues in excess of $500,000 and purchased and received at its Minnesota facilities goods and services valued in excess of $50,000 di­ rectly from sources and suppliers located outside the State of Minnesota. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 20, 1997, the Union was certified on April 1, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses and licensed practical nurses employed at the Respondent’s Fridley, Minnesota facility; ex­ cluding guards and supervisors as defined in 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 May 2, 1997, the Union requested the Re­ spondent to bargain, and, since May 5, 1997, the Re­ spondent has refused. We find that this refusal con­ stitutes 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 May 5, 1997, 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 af- 1 Member Higgins notes that he dissented in the representation proceeding and would have granted the Respondent’s request for re- view of the Regional Director’s Decision and Direction of Election. However, he agrees with his colleagues that the Respondent has raised no new issues in this ‘‘technical’’ 8(a)(5) proceeding warrant­ ing a hearing. 323 NLRB No. 200 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fecting 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 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, Beverly Enterprises—Minnesota, Inc. d/b/a Lynwood Health Care Center, Fridley, Min­ nesota, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Minnesota’s Health Care Union, Local 113, SEIU, 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, 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 registered nurses and licensed practical nurses employed at its Fridley, Minnesota facility; excluding guards and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Fridley, Minnesota, copies of the at­ tached notice marked ‘‘Appendix.’’2 Copies of the no- 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.’’ tice, on forms provided by the Regional Director for Region 18 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 May 12, 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. July 3, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) 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 or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Minnesota’s Health Care Union, Local 113, SEIU, 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. LYNWOOD HEALTH CARE CENTER 3 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 registered nurses and licensed practical nurses employed at our Fridley, Minnesota facility; excluding guards and supervisors as defined in the Act, and all other employees. BEVERLY ENTERPRISES—M INNESOTA, INC. D/B/A LYNWOOD HEALTH CARE CENTER