Kentucky River Community Care

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. Kentucky River Community Care, Inc. and Ken­ tucky State District Council of Carpenters, AFL–CIO, United Brotherhood of Carpenters and Joiners of America. Case 9–CA–34926 July 10, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on May 20, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 22, 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 9–RC–16837. (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 com­ plaint. On June 11, 1997, the General Counsel filed a Mo­ tion for Summary Judgment. On June 13, 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 27, 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 certification on the basis of the Board’s determination in the representation proceeding that the Respondent is an employer within the meaning of Section 2(2) 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 private non- profit corporation, has been engaged in mental health care and rehabilitation at its Hazard, Kentucky facility. During the 12-month period preceding the issuance of the complaint, the Respondent in conducting its busi­ ness operations described above, derived gross reve­ nues in excess of $250,000 and purchased and received at its Hazard, Kentucky facility, goods valued in ex­ cess of $2000 directly from sources outside the Com­ monwealth of Kentucky. We find that the Respondent is an employer engaged in commerce within the mean­ ing 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 7, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All professional and nonprofessional employees, including rehabilitation counselors, registered nurses, the licensed practical nurse, rehabilitation assistants and recreational assistants employed by the Respondent at its Caney Creek Rehabilitation Complex, excluding all 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 Since April 24, 1997, the Union has requested the Respondent to bargain, and, since May 15, 1997, the Respondent 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. 1 In the underlying case, Member Higgins, without passing on the correctness of Management Training Corp., 317 NLRB 1355 (1995), would have granted review with respect to the hearing officer’s ex­ clusion of testimony concerning the extent of control exercised by the state over the Respondent. See his dissenting opinion in Aramark Corp., 323 NLRB No. 26 (Feb. 28, 1997). However, he agrees with his colleagues that no new matters are appropriately raised in the in­ stant ‘‘technical’’ 8(a)(5) case and that summary judgment is there- fore appropriate. 323 NLRB No. 209 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By refusing on and after May 15, 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 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, Kentucky River Community Care, Inc., Hazard, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Kentucky State District Council of Carpenters, AFL–CIO, United Brotherhood of Carpenters and Joiners of America, as the exclusive bargaining representative of the employees in the bar- gaining 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 professional and nonprofessional employees, including rehabilitation counselors, registered nurses, the licensed practical nurse, rehabilitation assistants and recreational assistants employed by the Respondent at its Caney Creek Rehabilitation Complex, excluding all guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Hazard, Kentucky, copies of the at­ tached notice marked ‘‘Appendix.’’2 Copies of the no­ tice, on forms provided by the Regional Director for Region 9 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 20, 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 10, 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 Kentucky State District Council of Carpenters, AFL–CIO, United Brotherhood of Carpenters and Joiners of America as the exclusive representative of the employees in the bargaining unit. 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.’’ KENTUCKY RIVER COMMUNITY CARE 3 WE WILL NOT in any like or related manner interfere nurses, the licensed practical nurse, rehabilitation with, restrain, or coerce you in the exercise of the assistants and recreational assistants employed by rights guaranteed you by Section 7 of the Act. us at our Caney Creek Rehabilitation Complex, WE WILL, on request, bargain with the Union and excluding all guards and supervisors as defined in put in writing and sign any agreement reached on the Act. terms and conditions of employment for our employees in the bargaining unit: KENTUCKY RIVER COMMUNITY CARE, All professional and nonprofessional employees, INC. including rehabilitation counselors, registered