Genesis Health Ventures, Inc.

GENESIS HEALTH VENTURES 137 Genesis Health Ventures, Inc., t/a Genesis Elder Care and Fairview Care Center of Bethlehem Pike and District 1199C, National Union of Hospital & Health Care Employees, AFSCME, AFL- CIO. Case 4–CA–27388 November 27, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on August 19, 1998, the Act- ing General Counsel of the National Labor Relations Board issued a complaint on September 15, 1998, alleg- ing 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 certifi- cation in Case 4–RC–19345. (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 and an amended answer ad- mitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On October 19, 1998, the Acting General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On October 21, 1998, the Board issued an order transferring the proceeding to the Board and a No- tice 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 response, the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board’s unit determination in the representa- tion proceeding. The Respondent affirmatively asserts that the com- plaint should be dismissed because the Board’s decision in the underlying representation case with regard to the supervisory status of its licensed practical nurses (LPNs) is in error and contrary to the decisions of the Supreme Court in NLRB v. Healthcare & Retirement Corp., 511 U.S. 571 (1994), and of the Third Circuit in Passavant Retirement & Health Center v. NLRB, 149 F.3d 243 (3d Cir. 1998). Specifically, the Respondent argues that the unit is inappropriate because the LPNs are supervisors within the meaning of the Act. The representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence or allege any “special circum- stances” which would provide a basis for the Board to reexamine the decision made in the representation pro- ceeding. In the representation case we denied review of the Act- ing Regional Director’s Decision and Direction of Elec- tion as it raised no substantial issues warranting review. It would be contrary to our long-settled policy to allow the parties to relitigate representation case issues in “test of certification” unfair labor practice proceedings, absent newly discovered or previously unavailable evidence or special circumstances. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Further, the Respondent’s citation to a decision of the Third Circuit is selective and fails to acknowledge that the Board’s position on the supervisory status of nurses has been upheld by the Eighth, Ninth, and District of Columbia Circuits. Lynwood Health Care Center v. NLRB, 148 F.3d 1042 (8th Cir. 1998), enfg. 323 NLRB No. 200 (July 3, 1997) (not reported in Board volumes); Grandview Health Care Center v. NLRB, 129 F.3d 1269 (D.C. Cir. 1997), enfg. 322 NLRB No. 54 (Oct. 15, 1996) (not reported in Board volumes); and Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir. 1997), enfg. 321 NLRB No. 100 (July 10, 1996) (not reported in Board volumes). Moreover, in Passavant Retirement & Health Center v. NLRB, the Third Circuit specifically stated it was “not creating a per se rule that LPNs are supervisors.” 149 F.3d at 249. Indeed, each case must be decided on its own facts. The Acting Regional Director considered the entire factual record and the Respondent’s assertions concerning that record, and concluded that the LPNs are not supervisors. In doing so, he specifically found that LPNs do not exercise independent judgment in making work assignments to the certified nursing assistants (CNAs). In addition, the evidence presented in the un- derlying representation case with respect to the involve- ment of LPNs in the discipline and the evaluation of CNAs fell short of establishing that the LPNs make ef- fective recommendations concerning either of these Sec- tion 2(11) indicia. Significantly, in the disciplinary mat- ters relied upon by the Respondent, it was predominantly the House Supervisor, not the LPN, who made the rec- ommendations. Finally, the Acting Regional Director noted that the Director of Nursing testified that the evaluations are not used for promotions, raises and disci- plinary purposes. Accordingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following 1 Member Hurtgen did not participate in the underlying representa- tion case. He does not necessarily agree with it. However, he agrees that the Respondent does not raise any new factual matters, and thus summary judgment is appropriate. Similarly, although there are court decisions which may well be inconsistent with the legal conclusion reached in the representation case, Member Hurtgen agrees, for institu- tional reasons, not to challenge that representation case in this certifica- tion-testing 8(a)(5) case. See Pittsburgh Plate Glass, supra. Finally, and for the same reasons, Member Hurtgen does not pass on the effort here to further support the conclusion reached in the representation case. 327 NLRB No. 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138 FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation with a principal place of business in Kennett Square, Pennsylvania, has been engaged in the owner- ship, management, and operation of nursing homes and related health care ventures, including the operation, ownership, and management of the nursing home in- volved here, Fairview Care Center of Bethlehem Pike (the facility). During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, received gross revenues in excess of $250,000 and purchased and received at the facility goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. We further find that the Un- ion 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 April 23, 1998, the Union was certified on May 4, 1998, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time Licensed Practical Nurses, including regular part-time pool Licensed Prac- tical Nurses, but excluding all other employees, Regis- tered Nurses, professional employees, clerical employ- ees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain On about July 17, 1998, by letter, the Union has re- quested the Respondent to recognize and bargain, and since on or about that date the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after July 17, 1998, to recognize and 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 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. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification 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, Genesis Health Ventures, Inc., t/a Genesis Elder Care and Fairview Care Center of Bethlehem Pike, Kennett Square, Pennsylvania, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with District 1199C, National Union of Hospital & Health Care Em- ployees, AFSCME, AFL–CIO as the exclusive bargain- ing representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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, recognize 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, embody the understanding in a signed agreement: All full-time and regular part-time Licensed Practical Nurses, including regular part-time pool Licensed Prac- tical Nurses, but excluding all other employees, Regis- tered Nurses, professional employees, clerical employ- ees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Kennett Square, Pennsylvania, copies of the attached notice marked “Appendix.”2 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 4 after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” GENESIS HEALTH VENTURES 139 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since July 17, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with District 1199C, National Union of Hospital & Health Care Employees, AFSCME, AFL–CIO 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 bar- gaining unit: All full-time and regular part-time Licensed Practical Nurses, including regular part-time pool Licensed Prac- tical Nurses, but excluding all other employees, Regis- tered Nurses, professional employees, clerical employ- ees, guards and supervisors as defined in the Act. GENESIS HEALTH VENTURES, INC., T/A GENESIS ELDER CARE AND FAIRVIEW CARE CENTER OF BETHLEHEM PIKE