Frontier of Connecticut, Inc.

CENTER FOR OPTIMUM CARE 43 Frontier of Connecticut, Inc. d/b/a Center for Opti- mum Care and New England Health Care Em- ployees Union, District 1199, AFL–CIO. Case 34–CA–8281 August 12, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS LIEBMAN AND BRAME Pursuant to a charge filed on March 17, 1998, the Act- ing General Counsel of the National Labor Relations Board issued a complaint on April 27, 1998, 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 34–RC–1520. (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 admitting in part and deny- ing in part the allegations in the complaint. On May 29, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On June 2, 1998, 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 contention, rejected in the representation pro- ceeding, that the certified unit is inappropriate because the registered nurses and the licensed practical nurses who constitute the unit are supervisors within the mean- ing 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 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 Delaware cor- poration, with an office and place of business in West Hartford, Connecticut (facility), has been engaged in the operation of a skilled and semiskilled nursing facility providing health care services to the general public. During the 12-month period ending March 31, 1998, the Respondent in conducting its business operations de- scribed above, derived gross revenues in excess of $100,000 and purchased and received at its West Hart- ford facility goods valued at more than $50,000 directly from points outside the State of Connecticut. We find that the Respondent is an employer engaged in com- merce 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 January 8, 1998, the Union was certified on February 3, 1998, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Em- ployer at its West Hartford, Connecticut facility; but excluding all other employees, RN shift supervisors, per diem RN shift supervisors, the executive director, director of nursing services, assistant director of nurs- ing services, inservice/staff development coordinator, and guards, other professional employees and other su- pervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since February 5, 1998, the Union has requested the Respondent to bargain, and, since February 5, 1998, the Respondent 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 February 5, 1998, 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 certification as beginning the date the Respondent begins 326 NLRB No. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44 to bargain in good faith with the Union. Mar-Jac Poul- try 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, Frontier of Connecticut, Inc. d/b/a Center for Optimum Care, West Hartford, Connecticut, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with New England Health Care Employees Union, District 1199, AFL–CIO 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 understand- ing in a signed agreement: All full-time and regular part-time registered nurses and licensed practical nurses employed by the Em- ployer at its West Hartford, Connecticut facility; but excluding all other employees, RN shift supervisors, per diem RN shift supervisors, the executive director, director of nursing services, assistant director of nurs- ing services, inservice/staff development coordinator, and guards, other professional employees and other su- pervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in West Hartford, Connecticut, copies of the attached notice marked “Appendix.’’1 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 34 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- 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.” 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 February 5, 1998. (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. MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Acting Regional Director’s De- cision and Direction of Election, in which he found that the Employer’s RN and LPN charge nurses were not supervisors within the meaning of the Act. Review of the record was initially denied and here, effectively, my colleagues continue to deny review. In light of the close scrutiny of the Board’s decisions in the charge nurse area by the courts, I believe it both appropriate and essential that where, as here, significant factual issues have been raised, the Board give each record a full and careful re- view. See, e.g., Altercare of Hartville v. NLRB, 129 F.3d 365 (6th Cir. 1997), denying enforcement to 321 NLRB 847 (1996), and Cedar Ridge Nursing & Reha- bilitation Center v. NLRB, 147 F.3d 333 (4th Cir. 1998), denying enforcement to 322 NLRB No. 29 (1996) (not reported in Board volumes). Accordingly, I dissent from my colleagues’ granting the Acting General Counsel’s Motion for Summary Judgment and their finding that the Employer violated Section 8(a)(5) and (1) in this certification-testing pro- ceeding. 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 New England Health Care Employees Union, District 1199, AFL–CIO 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: CENTER FOR OPTIMUM CARE 45 All full-time and regular part-time registered nurses and licensed practical nurses employed by us at our West Hartford, Connecticut facility; but excluding all other employees, RN shift supervisors, per diem RN shift supervisors, the executive director, director of nursing services, assistant director of nursing services, inservice/staff development coordinator, and guards, other professional employees and other supervisors as defined in the Act. FRONTIER OF CONNECTICUT, INC. d/b/a CENTER FOR OPTIMUM CARE