Beverly Enterprises

303 NLRB No. 20 DOR D--2020 Johnstown, PA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD BEVERLY CALIFORNIA CORPORATION f/k/a BEVERLY ENTERPRISES, ITS OPERATING DIVISIONS, WHOLLY OWNED SUBSIDIARIES AND INDIVIDUAL FACILITIES AND EACH OF THEM (RICHLAND MANOR) and DISTRICT 1199P, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL+-CIO--CLC Case 6--CA--23350 May 28,1991 By members Devaney, Oviatl, and Randabaugh DECISION AND ORDER On March 15, 1991, the General Counsel of the National Labor Relations Board issued a complaint 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 6--RC--10518. (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 its answer admitting in part and denying in part the allegations in the complaint. On April 24, 1991, the General Counsel filed a Motion for Summary Judgment. On April 26, 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. 303 NLRB No. 20 D-2020 Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the grounds that the unit employees are supervisors within the meaning of the Act. 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 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 Judgement. On the entire record, the Board makes the following Findings of Fact I. Jurisdiction The Respondent, Beverly California Corporation f/k/a Beverly Enterprises, its operating divisions, wholly owned subsidiaries and individual facilities and each of them (Richland Manor), a California corporation, directly or through various wholly-owned subsidiaries, has been engaged as a health care institution, in the operation of nursing homes providing skilled care and intermediate care, including the Richland Manor Home in Johnstown, Pennsylvania, the only facility involved in this proceeding. During the 12- month period ending January 31, 1991, the Respondent in the course and conduct of its business derived gross revenues in excess of $500,000 and received goods and services at its Pennsylvania facilities valued in excess of $5000 from suppliers located outside the State. We find that the Respondent is an D--2020 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 December 14, 1990, the Union was certified on December 24, 1990, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses employed by the Respondent at its Johnstown, Pennsylvania, facility; excluding guards, other professional employees 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 Since January 4, 1991, the Union has requested the Respondent to bargain and, since February 4, 1991, 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. Conclusions of Law By refusing on and after February 4, 1991, 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 (a) (5) and (1) and Section 2(6) and (7) of the Act. D--2020 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 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, Beverly California Corporation f/k/a Beverly Enterprises, its operating divisions, wholly owned subsidiaries and individual facilities and each of them (Richland Manor), Johnstown, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District 1199P, Service Employees International Union, 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. D--2020 (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 full-time and regular part-time registered nurses employed by the Respondent at its Johnstown, Pennsylvania, facility; excluding guards, other professional employees and supervisors as defined in the Act and all other employees. (b) Post at its facility in Johnstown, Pennsylvania, copies of the attached notice marked ''Appendix. 111 Copies of the notice, on forms provided by the Regional Director for Region 6 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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. 1 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. 2020 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C. May 28, 1991 Dennis M. Devaney, Member Clifford R. Oviatt, Jr., Member (SEAL) John N. Raudabaugh, Member NATIONAL LABOR RELATIONS BOARD D--2020 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 District 1199P, Service Employees 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, 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 employed by the Respondent at its Johnstown, Pennsylvania, facility; excluding guards, other professional employees and supervisors as defined in the Act and all other employees. BEVERLY CALIFORNIA CORPORATION f/k/a BEVERLY ENTERPRISES, ITS OPERATING DIVISIONS, WHOLLY OWED SUBSIDIARIES AND INDIVIDUAL FACILITIES AND EACH OF THEM (RICHLAND MANOR) (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1000 Liberty Avenue, Room 1501, Pittsburgh, Pennsylvania 15222-4173, Telephone 412--644--2969.