Millsboro Nursing & Rehabilitation

328 NLRB No. 183 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. Millsboro Nursing & Rehabilitation Center, Inc. and United Food & Commercial Workers Union, Local 27, AFL–CIO, CLC. Case 5–CA–28355 August 31, 1999 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Pursuant to a charge filed on May 17, 1999, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on June 28, 1999, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain following the Union’s certification in Case 5–RC–14563.1 (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. On July 22, 1999, the General Counsel filed a Motion for Summary Judgment. On July 26, 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 the Respondent admits its refusal to bar- gain, but attacks the validity of the certification on the basis of its objections to 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.2 1 327 NLRB No. 153 (1999). 2 Member Hurtgen dissented from the Board’s overruling of the Re- spondent’s Objection 4 in the underlying representation case, and he remains of that view. However, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass v. NLRB, 313 U.S. 144, 162 (1941). In light of this, and for institutional reasons, he agrees with the decision to grant the General Counsel’s Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, a Delaware cor- poration with an office and place of business in Mills- boro, Delaware, has been engaged in the operation and management of a nursing home. During the 12 months preceding the issuance of the complaint, a representative period, in conducting its operations described above, the Respondent had gross revenues in excess of $250,000 and received goods valued in excess of $10,000 from points located directly outside the State of Delaware. 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 December 23, 1997, the Union was certified on March 17, 1999, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time, part full-time, and regular part-time certi- fied nursing assistants, laundry employees/house- keeping employees, assistant food service director, cooks, food service employees, maintenance employ- ees, ward clerks, activities employees, receptionists, admissions coordinator employed by the Employer at its nursing home facility in Millsboro, Delaware, but excluding all other persons employed by the Employer at its nursing home in Millsboro, Delaware including all employees who are licensed and may practice in the State of Delaware as either registered nurses or licensed practical nurses, Director of Nursing, Assistant Director of Nursing, nurse supervisors, resident care coordina- tors, quality assurance/in-service person, infection con- trol nurse, treatment nurse, charge nurses, MDS coor- dinator, office clerical employees, bookkeepers, confi- dential employees, temporary or casual 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 April 8, 1999, the Union, by letter, has requested the Respondent to bargain, and, since that date, the Re- spondent has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 8, 1999, to bargain with the Union as the exclusive collective-bargaining repre- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 sentative of employees in the appropriate unit, the Re- spondent 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, Millsboro Nursing & Rehabilitation Center, Inc., Millsboro, Delaware, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food & Commer- cial Workers Union, Local 27, AFL–CIO, CLC, as the exclusive 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, part full-time, and regular part-time certi- fied nursing assistants, laundry employees/house- keeping employees, assistant food service director, cooks, food service employees, maintenance employ- ees, ward clerks, activities employees, receptionists, admissions coordinator employed by the Employer at its nursing home facility in Millsboro, Delaware, but excluding all other persons employed by the Employer at its nursing home in Millsboro, Delaware including all employees who are licensed and may practice in the State of Delaware as either registered nurses or licensed practical nurses, Director of Nursing, Assistant Director of Nursing, nurse supervisors, resident care coordina- tors, quality assurance/in-service person, infection con- trol nurse, treatment nurse, charge nurses, MDS coor- dinator, office clerical employees, bookkeepers, confi- dential employees, temporary or casual employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Millsboro, Delaware, copies of the attached notice marked “Appendix.” 3 Copies of the notice, on forms provided by the Regional Director for Region 5 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 April 8, 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. August 31, 1999 Wilma B. Liebman, Member Peter J. Hurtgen, 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 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.” MILLSBORO NURSING & REHABILITATION CENTER 3 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 United Food & Commercial Workers Union, Local 27, 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 bar- gaining unit: All full-time, part full-time, and regular part-time certi- fied nursing assistants, laundry employees/house- keeping employees, assistant food service director, cooks, food service employees, maintenance employ- ees, ward clerks, activities employees, receptionists, admissions coordinator employed by us at our nursing home facility in Millsboro, Delaware, but excluding all other persons employed by us at our nursing home in Millsboro, Delaware including all employees who are licensed and may practice in the State of Delaware as either registered nurses or licensed practical nurses, Di- rector of Nursing, Assistant Director of Nursing, nurse supervisors, resident care coordinators, quality assur- ance/in-service person, infection control nurse, treat- ment nurse, charge nurses, MDS coordinator, office clerical employees, bookkeepers, confidential employ- ees, temporary or casual employees, guards and super- visors as defined in the Act. MILLSBORO NURSING & REHABILITATION CENTER, INC.