Gaitier Health Care Center

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the E x­ 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 Services, Inc. d/b/a Galtier Health Care Center and Minnesota’s Health Care Un­ ion, Service Employees International Union, Lo­ cal 113. Case 18–CA–17053 December 23, 2003 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH This is a refusal-to-bargain case in which the Respon­ dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed­ ing. Pursuant to a charge filed on October 22, 2003, the General Counsel issued the complaint on October 27, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 18–RC–17155. (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 admitting in part and deny­ ing in part the allegations in the complaint. On November 18, 2003, the General Counsel filed a Motion for Summary Judgment and brief in support. On November 20, 2003, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On De­ cember 4, 2003, the Respondent filed a response and a cross-motion for summary judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification based on its conten­ tion, raised and rejected in the representation proceeding, that the certified unit is inappropriate because the regis­ tered nurses and licensed practical nurses who comprise the unit are supervisors within the meaning of Section 2(11) of the Act. 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 General Counsel’s Motion for Sum­ mary Judgment, and we deny the Respondent’s cross- motion for summary judgment.1 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 St. Paul, Minnesota, has been engaged in the operation of a skilled nursing facility for the aged and infirm. During the 12- month period preceding issuance of the complaint, a rep­ resentative period, the Respondent, in conducting its business operations described above, derived gross reve­ nues in excess of $1,000,000, and purchased and re­ ceived at its St. Paul, Minnesota facility, goods and ser­ vices valued at more than $50,000 directly from points outside the State of Minnesota. We find that the Re­ spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Minnesota’s Health Care Union, Service Employees In­ ternational Union, Local 113 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 on August 6, 2003, the Un­ ion was certified on August 13, 2003, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses and licensed practical nurses, including the MDS Coordina­ tor and the Medicare Coordinator, employed by the Re­ spondent at its St. Paul, Minnesota facility; excluding guards and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive bargaining representative under Section 9(a) of the Act. B. Refusal to Bargain Since September 16, 2003, the Union has requested the Respondent to recognize it and bargain and, since Octo­ ber 16, 2003, the Respondent has refused. We find that 1 Member Schaumber dissented from the denial of the Respondent’s request for review in the underlying representation case. While he continues to be of the view that review was warranted, he agrees that the Respondent has not presented any new matters that would warrant denial of the Motion for Summary Judgment. 340 NLRB No. 157 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after October 16, 2003, to recog­ nize and bargain with the Union as the exclusive collec­ tive-bargaining representative of employees in the ap­ propriate unit, the Respondent has engaged in unfair la­ bor 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, Extendicare Health Services, Inc. d/b/a Galtier Health Care Center, St. Paul, Minnesota, its offi­ cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Minnesota’s Health Care Union, Service Employees International Union, Local 113, 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 exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time registered nurses and licensed practical nurses, including the MDS Coordina­ tor and the Medicare Coordinator, employed by the Re­ spondent at its St. Paul, Minnesota facility; excluding 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 St. Paul, Minnesota, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 18, 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 October 16, 2003. (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., December 23, 2003 Wilma B. Liebman, Member Peter C. Schaumber, Member Dennis P. Walsh, 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 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.” GALTIER HEALTH CARE CENTER 3 The National Labor Relations Board has found that we vio­ lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene­ fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Minnesota’s Health Care Union, Service Employees International Union, Local 113, 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 registered nurses and licensed practical nurses, including MDS Coordinator and the Medicare Coordinator, employed by us at our St. Paul, Minnesota facility; excluding guards and su­ pervisors as defined in the Act, and all other employ­ ees. EXTENDICARE HEALTH SERVICES, INC. D/B/A GALTIER HEALTH CARE CENTER