Harborside Healthcare

328 NLRB No. 128 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Harborside Healthcare, Inc. and Service Employees International Union. Case 8–CA–30592 July 8, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND BRAME Pursuant to a charge filed on March 17, 1999, the General Counsel of the National Labor Relations Board issued a complaint on April 27, 1999, 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 8–RC–15788. (Official notice is taken of the “rec- ord” 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 deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On June 4, 1999, the General Counsel filed a Motion for Summary Judgment. On June 9, 1999, 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 and response, the Respondent admits its refusal to bargain, but attacks the validity of the certifi- cation on the basis of its objections to the conduct of the election in the representation proceeding. All 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, nor does it allege any special cir- cumstances 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 un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following 1 Therefore, the Respondent’s motion to revoke certification and its request that the complaint be dismissed are denied. FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, a Massachusetts corporation, with an office and place of business in Beachwood, Ohio, has been engaged in the operation of a nursing home. Annually, the Respondent derives gross revenues in excess of $100,000 and purchases and re- ceives goods and material in excess of $10,000 directly from points located outside the State of Ohio. 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 is a health care institution within the mean- ing of Section 2(14) of the Act. We also find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act.2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 1, 1998, the Un- ion was certified on February 17, 1999, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time service and mainte- nance employees employed by the Employer at its 3800 Park East Drive, Beachwood, Ohio facility, in- cluding certified nurses aides, restorative aides, activi- ties aides, housekeepers, central supply clerks, laundry aides, dietary aides, and maintenance assistants, but ex- cluding all technical and professional employees, office clerical employees, medical records clerks, nursing sec- retaries, receptionists, admissions assistants, book- keeping and payroll employees, administrative assis- tants and schedulers, registered nurses, licensed practi- cal nurses, directors, managers, coordinators, cooks and PRNs, and all professional employees, guards, and su- pervisors as defined in the Act, and all other employ- ees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About March 2, 1999, the Union, by letter, requested the Respondent to bargain, and, since about mid-March 1999, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. 2 The Respondent’s answer asserts that the complaint allegations that the Respondent is engaged in commerce, that the Union is a labor or- ganization and that the unit is appropriate for the purposes of collective bargaining, “constitute conclusions of law to which no responsive pleading is required.” The Respondent stipulated to these subjects in the underlying representation case and does not deny them now. We find, therefore, that the Respondent’s failure to file a responsive plea to these allegations does not raise issues warranting a hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 CONCLUSION OF LAW By refusing on and after mid-March 1999, 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 affect- ing 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, Harborside Healthcare, Inc., Beachwood, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees Inter- national Union, Local 47, AFL–CIO, CLC, as the exclu- sive bargaining 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, bargain with the Union as the exclusive representative of the employees in the following appro- priate 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 service and mainte- nance employees employed by the Employer at its 3800 Park East Drive, Beachwood, Ohio facility, in- cluding certified nurses aides, restorative aides, activi- ties aides, housekeepers, central supply clerks, laundry aides, dietary aides, and maintenance assistants, but ex- cluding all technical and professional employees, office clerical employees, medical records clerks, nursing sec- retaries, receptionists, admissions assistants, book- keeping and payroll employees, administrative assis- tants and schedulers, registered nurses, licensed practi- cal nurses, directors, managers, coordinators, cooks and PRNs, and all professional employees, guards, and su- pervisors as defined in the Act, and all other employ- ees. (b) Within 14 days after service by the Region, post at its facility in Beachwood, Ohio, copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms provided by the Regional Director for Region 8 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since mid-March 1999. (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. Dated, Washington, D.C. July 8, 1999 John C. Truesdale, Chairman Wilma B. Liebman, Member J. Robert Brame III, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. 3 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.” HARBORSIDE HEALTHCARE, INC. 3 WE WILL NOT refuse to bargain with Service Employ- ees International Union, Local 47, AFL–CIO, CLC, as the exclusive representative of the employees in the bar- gaining 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 service and mainte- nance employees employed by us at our 3800 Park East Drive, Beachwood, Ohio facility, including certified nurses aides, restorative aides, activities aides, house- keepers, central supply clerks, laundry aides, dietary aides, and maintenance assistants, but excluding all technical and professional employees, office clerical employees, medical records clerks, nursing secretaries, receptionists, admissions assistants, bookkeeping and payroll employees, administrative assistants and sched- ulers, registered nurses, licensed practical nurses, di- rectors, managers, coordinators, cooks and PRNs, and all professional employees, guards, and supervisors as defined in the Act, and all other employees. HARBORSIDE HEALTHCARE, INC.