Crestwood Convalescent

328 NLRB No. 47 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. Extendicare Health Facilities, Inc. d/b/a Crestwood Convalescent Center and United Food and Commercial Workers Local 381, affiliated with United Food and Commercial Workers Interna- tional Union, AFL–CIO–CLC. Case 19-CA- 26393 May 6, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on March 11, 1999, the General Counsel of the National Labor Relations Board issued a complaint on March 19, 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 19–RC–13707. (Official notice is taken of the “re- cord” 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, with an additional defense, admitting in part and denying in part the allegations in the complaint. On April 5, 1999, the General Counsel filed a Motion for Summary Judgment. On April 6, 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 the Board’s unit determination in the representation proceeding. The Respondent states as a defense that all the registered nurses and licensed prac- tical nurses employed in the bargaining units purportedly certified by the NLRB are supervisors within the mean- ing of Section 2(11) of the Act and it is under no obliga- tion to recognize or bargain for such individuals in these units. 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). Further, the Respondent’s reliance on the decisions of the Third, Fourth, and Sixth Circuits in charge nurse cases fails to acknowledge that the Board’s position on the supervisory status of nurses has been upheld by the Seventh, Eighth, Ninth, and District of Columbia Cir- cuits. NLRB v. Audubon Health Care Center, 170 F.3d 662 (7th Cir. 1999) (en banc); Lynwood Health Care Center v. NLRB, 148 F.3d 1042 (8th Cir. 1998), enfg. 323 NLRB No. 200 (July 3, 1997) (not reported in bound 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 bound volumes); Provi- dence Alaska Medical Center v. NLRB, 121 F.3d 547 (9th Cir. 1997), enfg. 321 NLRB No. 100 (July 10, 1996) (not reported in bound volumes). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a State of Delaware corporation, with a convalescent center in Port Angeles, Washington, where it is engaged in providing patient and health care services. The Respondent, during the 12-month period preced- ing issuance of the complaint, which period is represen- tative of all material times, in the course and conduct of its business operations, had gross sales of goods and services valued in excess of $250,000, and purchased and caused to be transferred and delivered to its facility within the State of Washington goods and materials val- ued in excess of $5000 which originated outside the State. 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 elections held December 23, 1998, the Union was certified on January 6, 1999, as the exclusive collective-bargaining representative of the employees in the following appropriate units: UNIT A: All employees of the Employer at its Port Angeles, Washington, facility employed as licensed practical nurses, dietary aides, cooks, housekeepers, laundry employees, maintenance employees, activities employ- ees, medical records clerks, nursing clerks, supply clerks, certified nursing assistants, nourishment aides, environmental aides, case mix coordinator, rehabilita- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 tion aides and registered nursing assistants; excluding professional employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. UNIT B: All registered nurses employed by the Employer at its Port Angeles, Washington, facility; excluding all non- professional employees, technical employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative of the units under Section 9(a) of the Act. B. Refusal to Bargain About February 26, 1999, the Union, by letter, re- quested the Respondent to bargain, and, since about March 2, 1999, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlaw- ful 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 March 2, 1999, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate units, the Respondent has engaged in unfair labor prac- tices 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, Extendicare Health Facilities, Inc. d/b/a Crestwood Convalescent Center, Port Angeles, Wash- ington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Com- mercial Workers Local 381, affiliated with United Food and Commercial Workers International Union, AFL- CIO, CLC, as the exclusive bargaining representative of the employees in the bargaining units. (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 units on terms and conditions of employment, and if an understanding is reached, embody the understand- ing in a signed agreement: UNIT A: All employees of the Employer at its Port Angeles, Washington, facility employed as licensed practical nurses, dietary aides, cooks, housekeepers, laundry employees, maintenance employees, activities employ- ees, medical records clerks, nursing clerks, supply clerks, certified nursing assistants, nourishment aides, environmental aides, case mix coordinator, rehabilita- tion aides and registered nursing assistants; excluding professional employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. UNIT B: All registered nurses employed by the Employer at its Port Angeles, Washington, facility; excluding all non- professional employees, technical employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Port Angeles, Washington, copies of the attached notice marked “Appendix.” 1 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 19 after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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 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 March 2, 1999. 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 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.” CRESTWOOD CONVALESCENT CENTER 3 (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. May 6, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from the denial of the Employer’s request for re- view of the Regional Director’s Decision and Direction of Election in which he found that the Employer’s regis- tered nurses and licensed practical nurses were not su- pervisors within the meaning of the Act. For reasons set out in my dissent in Troy Hills Nursing Home, 326 NLRB No. 159 (Sept. 30, 1998), I dissented there. The issues presented are significant and warrant careful con- sideration by the Board. Accordingly, and in light of the close scrutiny given by the courts of appeal to the Board’s decisions in this area, simply granting summary judgment is not an adequate substitute for the Board’s full and careful examination of the record through a grant of review in the underlying representation case. Dated, Washington, D.C. May 6, 1999 J. Robert Brame III, Member 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. WE WILL NOT refuse to bargain with United Food and Commercial Workers Local 381, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining units. 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 units: UNIT A: All employees at our facility employed as licensed practical nurses, dietary aides, cooks, housekeepers, laundry employees, maintenance employees, activities employees, medical records clerks, nursing clerks, sup- ply clerks, certified nursing assistants, nourishment aides, environmental aides, case mix coordinator, reha- bilitation aides and registered nursing assistants; ex- cluding professional employees, office clerical em- ployees, guards and supervisors as defined in the Act, and all other employees. UNIT B: All registered nurses employed by us at our facility; ex- cluding all non-professional employees, technical em- ployees, office clerical employees, guards and supervi- sors as defined in the Act, and all other employees. EXTENDICARE HEALTH FACILITIES, INC. D/B/A CRESTWOOD CONVALESCENT CENTER