Leisure Chateau Care Center

331 NLRB No. 36 NOTICE: This opinion is subject to formal revision before publication in the Board 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. Leisure Chateau Care Center and Communication Workers of America, AFL–CIO. Case 4–CA– 29093 May 31, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Pursuant to a charge filed on March 23, 2000, the General Counsel of the National Labor Relations Board issued a complaint on March 30, 2000, 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 6–RC–11759 (formerly Case 4–RC–19836). (Offi- cial notice is taken of the “record” in the representation proceeding as defined in the Board’s Rules and Regula- tions, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On April 25, 2000, the General Counsel filed a Motion for Summary Judgment. On April 26, 2000, 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 the Board’s unit determination in the representa- tion 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New Jersey corporation, has been engaged in the operation of a nurs- ing home at 962 River Avenue, Lakewood, New Jersey. During the 12-month preceding the issuance of the com- plaint, the Respondent, in conducting its business opera- tions, received gross revenues in excess of $100,000 and purchased and received goods valued in excess of $5000 directly from points outside the State of New Jersey. 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 has been a health care institution within the meaning of Section 2(14) of the Act. We also find that the Union has been 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 on February 8, 2000, the Union was certified on March 8, 2000, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses, including staff nurses, charge nurses and director of quality assurance and infection control, employed by Respondent at its Lakewood, New Jersey Nursing Home, excluding office clerical employees, the nursing administrator, assistant nursing administrator, RN su- pervisors, in-service RNs and unit coordinators, mana- gerial executives and guards, other professional em- ployees and other supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since March 3, 2000, the Union, by letter, has re- quested the Respondent to bargain, and, since March 8, 2000, 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. CONCLUSION OF LAW By refusing on and after March 8, 2000, 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- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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, Leisure Chateau Care Center, Lakewood, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Communication Workers of America, AFL–CIO, as the exclusive bargaining rep- resentative 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 registered nurses, including staff nurses, charge nurses and director of quality assurance and infection control, employed by Respondent at its Lakewood, New Jersey Nursing Home, excluding office clerical employees, the nursing administrator, assistant nursing administrator, RN su- pervisors, in-service RNs and unit coordinators, mana- gerial executives and guards, other professional em- ployees and other supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Lakewood, New Jersey, copies of the at- tached notice marked “Appendix.”1 Copies of the notice, on forms provided by the Regional Director for Region 4 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- 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.” 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 March 8, 2000. (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 31, 2000 John C. Truesdale, Chairman Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Regional Director’s decision, in which she found that the RN staff nurses are not statutory supervisors. Accordingly, I dissent here from my col- leagues’ granting the General Counsel’s motion for sum- mary judgment and their finding that the Employer vio- lated Section 8(a)(5) and (1) of the Act.1 Dated, Washington, D.C. May 31, 2000 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 Communication Workers of America, AFL–CIO, as the exclusive repre- sentative 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: 1 See also my dissent in a prior related proceeding, Leisure Chateau Care Center, 330 NLRB No. 127 (2000). LEISURE CHATEAU CARE CENTER 3 All full-time and regular part-time registered nurses, including staff nurses, charge nurses and director of quality assurance and infection control, employed by us at our Lakewood, New Jersey Nursing Home, exclud- ing office clerical employees, the nursing administrator, assistant nursing adminis trator, RN supervisors, in- service RNs and unit coordinators, managerial execu- tives and guards, other professional employees and other supervisors as defined in the Act, and all other employees. LEISURE CHATEAU CARE CENTER