Sprain Brook Manor Nursing Home

SPRAIN BROOK MANOR NURSING HOME 348 NLRB No. 48 851 Sprain Brook Manor Nursing Home, LLC and New York’s Health and Human Services Union 1199/SEIU. Case 2–CA–37787 September 29, 2006 DECISION AND ORDER BY MEMBERS SCHAUMBER, KIRSANOW, 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 July 21, 2006, the General Counsel issued the complaint on August 4, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 2–RC– 23014. (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 denying in part the allegations in the complaint.1 On August 29, 2006, the General Counsel filed a Mo- tion for Summary Judgment. On September 1, 2006, 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 The Respondent denies that the Union was properly certified as the exclusive bargaining representative of the unit employees and attacks the validity of the certifica- tion on the basis of its objections to the election in the representation proceeding. In addition, the Respondent contends that the Board’s decision in Randell Warehouse of Arizona, Inc., 347 NLRB No. 56 (2006), which issued after the decision in the representation proceeding, cre- ates special circumstances warranting reexamination of the Board’s decision in the representation case to over- rule the Respondent’s objection 14, which alleged, in part, that the Union photographed employees without their consent and used the photographs in its campaign materials. In Randell Warehouse, the Board held that, in 1 The Respondent’s answer denies knowledge or information suffi- cient to form a belief concerning the filing and service of the charge. The Respondent’s answer also denies the complaint allegation that the Union was certified as the exclusive collective-bargaining representa- tive of the unit on June 29, 2006. Copies of the charge, the certificate of service of the charge, and the Certification of Representative are included in the documents supporting the General Counsel’s motion, showing the dates as alleged, and the Respondent does not refute the authenticity of these documents. the absence of a valid explanation conveyed to employ- ees in a timely manner, photographing employees en- gaged in Section 7 activity constitutes objectionable con- duct whether engaged in by a union or an employer. The Respondent contends that, under the standard articulated in Randell Warehouse, the Union’s alleged photograph- ing of employees constituted objectionable conduct that reasonably tended to interfere with employee free choice, and the election must therefore be overturned. 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. With respect to the Respondent’s contention that Randell Warehouse creates special cir- cumstances warranting reexamination of the decision in the representation case, we find Randell Warehouse to be materially distinguishable. As indicated in the decision in the representation case, it is not clear who photo- graphed the employees. Further, prior to using the pho- tographs in campaign materials, the Union obtained signed consent forms, and there is no evidence that the authorized use of the photographs reasonably tended to interfere with employee free choice in the election.2 We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair 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.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, with an office and principal place of business located at 77 Jackson Avenue, Scarsdale, New York, 10583, herein called the Respondent’s facility, has been engaged in the operation and maintenance of a nursing home. Annually, the Respondent, in conducting its business operations described above, derives gross revenues in excess of $100,000 and purchases and receives goods and services valued in excess of $5,000 directly from suppliers located outside the State of New York. 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 it is a health care institution within the meaning of Section 2(14) of the Act. We find that New York’s Health and Human Services Union 1199/SEIU 2 Member Walsh, who dissented in Randell Warehouse, agrees that it is distinguishable. 3 The Respondent’s request that the complaint be dismissed in its en- tirety is therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 852 (the Union), is a labor organization within the meaning of Section 2(5) of the Act.4 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held September 22, 2005, the Union was certified on June 29, 2006, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time and per-diem non-professional employees including licensed prac- tical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laun- dry employees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but ex- cluding all other employees, including office clerical employees, managers and guards, professional em- ployees and supervisors as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated July 6, 2006, the Union requested the Respondent to recognize and bargain with it and, since that same date, the Respondent has failed and refused to recognize and bargain with the Union.5 CONCLUSION OF LAW By refusing since July 6, 2006, to bargain with the Un- ion as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the Act. 4 The Respondent’s answer denies sufficient knowledge or informa- tion to admit or deny the Union’s status as a labor organization. The Respondent, however, effectively stipulated in the underlying represen- tation proceeding that the Union is a labor organization within the meaning of the Act. Accordingly, we find that the Respondent’s an- swer does not raise any issue warranting a hearing with respect to this allegation. See All American Services & Supplies, 340 NLRB 239 fn. 2 (2003). 5 Although the Respondent’s answer denies the allegation that the Respondent has refused to bargain, nowhere in its answer or response to the Notice to Show Cause does the Respondent contend that it has offered to meet and bargain with the Union since its July 6, 2006 re- quest. On the contrary, it is clear from the other denials in the Respon- dent’s answer and the arguments in its response that the Respondent is in fact refusing to bargain with the Union in order to test the certifica- tion. Accordingly, we find that no issue warranting a hearing is raised by the Respondent’s denial. 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 law, we shall construe the initial period of the certifi- cation 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, Sprain Brook Manor Nursing Home, LLC, Scarsdale, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with New York’s Health and Human Services Union, 1199/SEIU, 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 and regular part-time and per-diem non-professional employees including licensed prac- tical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laun- dry employees/assistants, dietary aides, and cooks employed by the Employer at its facility located at 77 Jackson Avenue, Scarsdale, New York, but ex- cluding all other employees, including office clerical employees, managers and guards, professional em- ployees and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Scarsdale, New York, copies of the attached SPRAIN BROOK MANOR NURSING HOME 853 notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 2, 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 July 6, 2006. (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. 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 violated Federal labor law and has ordered us to post and obey this notice. 6 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.” FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a 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 New York’s Health and Human Services Union 1199/SEIU, as the exclusive collective-bargaining representative of the em- ployees 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 and per-diem non-professional employees including licensed prac- tical nurses, certified nurses aides, geriatric techs/activity aides, housekeeping employees, laun- dry employees/assistants, dietary aides, and cooks employed by us at our facility located at 77 Jackson Avenue, Scarsdale, New York, but excluding all other employees, including office clerical employ- ees, managers and guards, professional employees and supervisors as defined by the Act. SPRAIN BROOK MANOR NURSING HOME, LLC