Beverly Manor Of Monroeville

1084 BEVERLY MANOR Beverly Enterprises-Pennsylvania, Inc. d/b/a Bever- ly Manor of Monroeville and District 1199P, National Union of Hospital and Health Care Employees, AFL-CIO. Case 6-CA-19866 24 November 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT Upon a charge filed by the Union 26 February 1987, the General Counsel of the National Labor Relations Board issued a complaint 27 July 1987, as amended 14 August 1987, against Beverly Enter- prises-Pennsylvania, Inc. d/b/a Beverly Manor of Monroeville, the Company, alleging that it has vio- lated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 10 February 1987, following a Board election in Case 6-RC-9728, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 19 February 1987 the Company has refused to bargain with the Union. On 4 August 1987 the Company filed its answer admitting in part and denying in part the allegations in the com- plaint. On 14 September 1987 the General Counsel filed a Motion for Summary Judgment. On 16 Septem- ber 1987 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 Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer to the complaint and its response to Motion for Summary Judgment, the Company admits that the Union has been certified as the ex- clusive collective-bargaining representative of the unit determined to be appropriate 1 and that the 1 On 12 December 1986 the Regional Director issued a Decision and Direction of Election finding, inter alia, the petitioned -for unit of all full- time and regular part-time licensed practical charge nurses was a unit ap- propriate for the purposes of collective bargaining The Board (Member Cracraft dissenting) denied the Company's request for review of the Re- gional Director's decision on 16 January 1987 A secret-ballot election was held on 12 January 1987 in which a majority of the employees in the unit selected the Union as their collective-bargaining representative The Company filed an objection to the conduct of the election challenging the appropriateness of the unit The Regional Director overruled this ob- Company has failed and refused to recognize and bargain collectively with the Union. The Compa- ny, however, contests the Union's certification on the basis that the unit of employees found appropri- ate in the underlying representation proceeding is inappropriate because the Company's licensed prac- tical nurses (LPNs) are supervisors and/or manage- rial employees. In his Decision and Direction of Election, the Regional Director found that the record failed to establish that the LPNs were either supervisors or managerial employees. In its re- sponse to Motion for Summary Judgment, the Company expressly relies on the arguments it pre- viously raised in the underlying representation case. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Sections 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a California corporation, is en- gaged in the operation of health care institutions and nursing homes with locations throughout the United States. The facility involved herein is locat- ed in Monroeville, Pennsylvania. The Company, during the 12-month period preceding the hearing in the representation proceeding, received gross revenues in excess of $100,000 and purchased and jection in his 10 February 1987 Supplemental Decision and Certification of Representative The Board (Member Cracraft concurring) denied the Company's request for review of the Regional Director's Supplemental Decision in an Order dated 17 March 1987 2 Although Member Cracraft would have granted the Respondent's original request for review, she agrees with the General Counsel that, under the circumstances, the Respondent is now barred from relitigating the same issues litigated in the underlying representation case proceeding 286 NLRB No. 106 BEVERLY MANOR 1085 received goods in Pennsylvania valued in excess of $10,000 directly from points located outside the Commonwealth of Pennsylvania. The Company admits and we find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act.3 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 12 January 1987, the Union was certified 10 February 1987 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time licensed practical nurses and registered nurses who function as licensed practical charge nurses, employed by the Employer at its Monroeville, Pennsylvania facility; excluding service and maintenance employees, business office clerical employees and guards, professional employees and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 19 February 1987 the Union has requested and the Company has refused to bargain. We find that this refusal constitutes art unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 19 February 1987 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Company has engaged in unfair labor 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 8 In its answer and response, the Company admits that it is an employ- er engaged in commerce within the meaning of the Act The Company's answer, however, generally denies the factual allegations in the complaint supporting the commerce allegations The General Counsel has attached to the Motion for Summary Judgment portions of the transcript of the hearing in the underlying representation proceeding in Case 6-RC-9728 in which the parties stipulated to the above jurisdictional facts In its re- sponse the Company neither has disputed the validity of the stipulation nor argued that changed circumstances require a reexamination of those facts concerning commerce as stipulated at the representation hearing. See Roma Baking Co, 263 NLRB 24 fn 1 (1982) 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 ini- tial period of the certification 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). ORDER4 The National Labor Relations Board orders that the Respondent, Beverly Enterprises-Pennsylvania, Inc. d/b/a Beverly Manor of Monroeville, Mon- roeville, Pennsylvania, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District 1199P, Na- tional Union of Hospital and Health Care Employ- ees, AFL-CIO as the exclusive bargaining repre- sentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate 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 licensed practical nurses and registered nurses who function as licensed practical charge nurses, employed by the Employer at its Monroeville, Pennsylvania facility; excluding service and maintenance employees, business office clerical employees and guards, professional employees and supervisors as defined in the Act. (b) Post at its facility in Monroeville, Pennsylva- nia, copies of the attached notice marked "Appen- dix."5 Copies of the notice, on forms provided by 4 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes , to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request S 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 Nation- Continued 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 6, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt 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 altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Employees, AFL-CIO as the exclusive representa- tive of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 bargaining unit: All full-time and regular part-time licensed practical nurses and registered nurses who function as licensed practical charge nurses, employed by the Employer at its Monroeville, Pennsylvania facility; excluding service and maintenance employees, business office clerical employees and guards, professional employees and supervisors as defined in the Act. BEVERLY ENTERPRISES-PENNSYLVA- NIA, INC. D/B/A BEVERLY MANOR OF MONROEVILLE The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with District 1199P, National Union of Hospital and Health Care