Bry-Fern Care Center

BRY-FERN CARE CENTER Bry-Fern Care Center, Inc. and Local 79, Service Employees International Union, AFL-CIO. Case 7-CA-33157 October 30, 1992 DECISION AND ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH On June 5, 1992, the General Counsel of the National Labor Relations Board issued an amended complaint and notice of hearing 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 7- RC-19722. (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 September 18, 1992, the General Counsel filed a Motion for Summary Judgment. On September 22, 1992, 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. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain and to furnish information that is relevant and necessary to the Union's role as bargaining representative, but attacks the validity of the certification on the basis of the Board's unit determination in the representation proceeding. 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). There are no factual issues regarding the Union's request for information because the Respondent admitted that it refused to furnish the information. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, has maintained facilities in Berrien Center and Berrien Springs, Michigan, and has been engaged in the operation of a skilled nursing home in Berrien Center, Michigan, and in the operation of an associated laundry facility in Berrien Springs, Michigan. During the 12-month period ending December 31, 1991, the Respondent, in conducting its operations, derived gross revenues in excess of $100,000 and during this same period of time, purchased and received at its Berrien Center and Berrien Springs facilities, goods valued in excess of $50,000 directly from points located outside the State of Michigan. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(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 January 17, 1992,¹ the Union was certified on January 27, 1992, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time nursing assistants, cooks, dietary aides, housekeeping and custodial employees, and laundry employees employed by Respondent at its 6786 Deans Hill Road, Berrien Center, Michigan facility and its 457 West Ferry Street, Berrien Springs, Michigan facility; BUT EXCLUDING all registered nurses, licensed practical nurses, activities director, office and clerical employees, professional employees, technical 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 Since March 16, 1992, the Union has requested the Respondent to bargain and to furnish information, and, since April 3, 1992, 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. 1 The Respondent filed a request for review of the Regional Director's Decision and Direction of Election in which it requested a stay of election pending the Board's decision. By Order dated Jaunary 16, 1992, the Board denied both requests. 309 NLRB No. 53 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW By refusing on and after April 3, 1992, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit and to furnish the Union requested information, the Respondent has engaged in unfair labor practices affecting 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 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. We also shall order the Respondent to furnish the Union the information requested. 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 commences to meet and 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, Bry-Fern Care Center, Inc., Berrien Center and Berrien Springs, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 79, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. (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 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 nursing assistants, cooks, dietary aides, housekeeping and custodial employees, and laundry employees employed by Respondent at its 6786 Deans Hill Road, Berrien Center, Michigan facility and its 457 West Ferry Street, Berrien Springs, Michigan facility; BUT EXCLUDING all registered nurses, licensed practical nurses, activities director, office and clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. (b) On request, furnish the Union information that is relevant and necessary to its role as the exclusive representative of the unit employees. (c) Post at its facilities in Berrien Center and Berrien Springs, Michigan, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 7 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 79, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. 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 nursing assistants, cooks, dietary aides, housekeeping and cus- BRY-FERN CARE CENTER todial employees, and laundry employees employed by us at our 6786 Deans Hill Road, Berrien Center, Michigan facility and our 457 West Ferry Street, Berrien Springs, Michigan facility; BUT EXCLUDING all registered nurses, licensed practical nurses, activities director, office and clerical employees, professional employees, technical employees, guards and supervisors as defined in the Act. BRY-FERN CARE CENTER, INC.