Audubon Health Care 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. Grancare, Inc. d/b/a Audubon Health Care Center and United Food & Commercial Workers Union, Local 1444 Chartered by the UFCW International Union, AFL–CIO, CLC. Case 30– CA–13663 April 25, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on January 31, 1997, the General Counsel of the National Labor Relations Board issued a complaint and an amendment to com­ plaint on February 21 and March 11, 1997, respec­ tively, alleging that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain follow­ ing the Union’s certification in Cases 30–RC–5576 and 30–RC–5577. (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 amended com­ plaint and asserting affirmative defenses. On March 28, 1997, the General Counsel filed a Motion for Summary Judgment. On April 1, 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 15, 1997, the Re­ spondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its failure to respond to the Union’s requests to bargain, but attacks the validity of the certification on the basis of its contentions in the representation proceeding that its charge nurse LPNs are statutory supervisors, that an overall unit of service and maintenance employees in­ cluding the LPNs is inappropriate, and that the passage of time and turnover at the facility require a new elec­ tion. 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 corporation, with an office and place of business in Bayside, Wis­ consin, has been engaged in the operation of a nursing home providing medical care. During the year ended December 31, 1996, the Respondent, in conducting its operation, derived gross revenues in excess of $100,000 and purchased and received goods and mate- rials valued in excess of $5000 directly from suppliers located outside the State of Wisconsin. 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 May 27, 1994, the Union was certified on December 26, 1996, as the ex­ clusive collective-bargaining representative of the em­ ployees in the following appropriate unit: All full-time and regular part-time service and maintenance employees of the Employer including certified nursing assistants, LPN charge nurses, restorative aides, unit secretaries, dietary aides and cooks; but excluding administrator, assistant administrator, Director of Nursing, Assistant Di­ rector of Nursing, RN’s, volunteers, nurse techni­ cians, office and clerical employees, business of­ fice employees, 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 On January 15 and 23, 1997, the Union requested the Respondent to meet and bargain, and since January 15, 1997, the Respondent has failed to respond. We find that this failure to respond constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. See, e.g., Indeck Energy Services, 318 NLRB 321 (1995). 1 Member Higgins did not participate in the underlying representa­ tion proceeding. He agrees, however, that the Respondent has not raised any representation issue that is properly litigable before the Board in this ‘‘technical’’ refusal to bargain unfair labor practice proceeding. 323 NLRB No. 85 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By failing since January 15, 1997, to meet and 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, Grancare, Inc. d/b/a Audubon Health Care Center, Bayside Wisconsin, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food & Com­ mercial Workers Union, Local 1444 Chartered by the UFCW International Union, AFL-CIO, CLC, 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, meet 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, em- body the understanding in a signed agreement: All full-time and regular part-time service and maintenance employees of the Employer including certified nursing assistants, LPN charge nurses, restorative aides, unit secretaries, dietary aides and cooks; but excluding administrator, assistant administrator, Director of Nursing, Assistant Di­ rector of Nursing, RN’s, volunteers, nurse techni­ cians, office and clerical employees, business of­ fice employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bayside, Wisconsin, copies of the at­ tached notice marked ‘‘Appendix.’’2 Copies of the no­ tice, on forms provided by the Regional Director for Region 30 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 January 31, 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. April 25, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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.’’ 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. AUDUBON HEALTH CARE CENTER 3 WE WILL NOT refuse to bargain with United Food & Commercial Workers Union, Local 1444 Chartered by the UFCW International Union, 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, meet and 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 service and maintenance employees employed by us including certified nursing assistants, LPN charge nurses, restorative aides, unit secretaries, dietary aides and cooks; but excluding administrator, assistant administrator, Director of Nursing, Assistant Di­ rector of Nursing, RN’s, volunteers, nurse techni­ cians, office and clerical employees, business of­ fice employees, guards and supervisors as defined in the Act. GRANCARE, INC. D/B/A AUDUBON HEALTH CARE CENTER