Carriage Inn Of Steubenville, Inc.

398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Carriage Inn of Steubenville, Inc. and United Steel- workers of America, AFL-CIO, CLC. Case 8- CA-22735 August 9, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On May 31, 1990, the General Counsel of the National Labor Relations Board issued a complaint 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 follow- ing the Union's certification in Case 8-RC-14279 (Official notice is taken of the "record" in the rep- resentation proceeding as defined' in the Board's Rules and Regulations, Secs 102 68 and 102 69(g), Frontier Hotel, 265 NLRB 343 (1982) ) The Re- spondent filed an answer admitting in part and de- nying in part the allegations in the complaint On July 16, 1990, the General Counsel filed a Motion for Summary Judgment On July 18, 1990, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted On July 23, 1990, the Respondent filed a response The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel Ruling on Motion for Summary Judgment In its answer and response to the Notice to Show Cause the Respondent admits its refusal to bargain, but attacks the validity of the certification on the ground that the Board in the representation proceeding erroneously found that the Respond- ent's licensed practical nurses (LPNs) were not statutory supervisors and improperly included them in the unit All representation issues raised by the Respond- ent were or could have been litigated in the pnor representation proceeding The Respondent does not offer to adduce at a heanng any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would re- quire the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any representa- tion issue that is properly litigable in this unfair ' The only new defense raised by the Respondent in its answer and re- sponse to the Notice to Show Cause is that the Board arbitranly and ca- priciously gave only "quickie" consideration e, no more than 30 min- utes or less than 1 hour of review) to its request for review in the repre- sentation proceeding The Respondent's defense is factually unsubstantiat- ed and legally without ment labor practice proceeding See Pittsburgh Plate Glass Co v NLRB, 313 US 146, 162 (1941) Ac- cordingly, we grant the Motion for Summary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, an Ohio corporation with an office and place of business in Steubenville, Ohio, is engaged in the operation of a nursing home pro- viding intermediate and skilled nursing care In the course of its business operations, the Respondent annually receives gross revenues in excess of $250,000 and purchases and receives at its Steuben- ville, Ohio facility products, goods, and materials valued in excess of $50,000 directly from outside the State of Ohio We find that the Respondent 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 organization within the mean- ing of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held Apnl 25, 1990, the Union was certified on May 3, 1990, as the collec- tive-bargaining representative of the employees in the following appropriate unit All full-time and regular part-time employees employed by the Employer at its Steubenville, Ohio facility including licensed practical nurses, nurses aides, housekeeping employees, dietary employees, laundry employees, office clerical employees, social and activity service employees, and orderly and maintenance em- ployees, but excluding all professional employ- ees, guards 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 May 10, 1990, the Union has requested the Respondent to bargain and, since May 21, 1990, the Respondent has refused We find that this refusal 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 May 21, 1990, to bar- gain with the Union as the exclusive collective-bar- 299 NLRB No 49 CARRIAGE INN OF STEUBENVILLE 399 ,.. gaining representative of employees in the appro- priate unit, the Respondent 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 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 penod 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 Go, 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600 (5th Or 1964), cert denied 379 U S 817 (1964), Burnett Construction Go, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d 57 (10th Cir 1965) ORDER The National Labor Relations Board orders that the Respondent, Carriage Inn of Steubenville, Inc , Steubenville, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with United Steelworkers of Amenca, AFL-CIO, CLC, as the exclusive bar- gaining representative of the employees in the bar- gaining 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 umt 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 employees employed by the Employer at its Steubenville, Ohio facility mcludmg licensed practical nurses, nurses aides, housekeeping employees, dietary employees, laundry employees, office clerical employees, social and activity service employees, and orderly and maintenance em- ployees, but excluding all professional employ- ees, guards and supervisors as defined in the Act (b) Post at its facility in Steubenville, Ohio, copies of the attached notice marked "Appendix "2 Copies of the notice, on forms provided by the Re- gional Director for Region 8 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees are customanly posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other matenal (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER OVIATT, dissenting Contrary to my colleagues, I would not grant the General Counsel's Motion for Summary Judg- ment In the underlying representation case (8-RC- 14279), I dissented from my colleagues' denial of the Respondent's request for review with respect to the LPNs' supervisory status and inclusion in the unit Accordingly, I also dissent from my col- leagues decision here, in this test-of-certification case, to grant the General Counsel's motion and issue a bargaining order in the certified unit 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 Nation- 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 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 United Steelworkers of America, AFL-CIO, CLC 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 exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL, on request, bargain with the Union and put in wntmg and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time employees employed by the Employer at its Steubenville, Ohio facility including licensed practical nurses, nurses aides, housekeeping employees, dietary employees, laundry employees, office clerical employees, social and activity service employees, and orderly and maintenance em- ployees, but excluding all professional employ- ees, guards and supervisors as defined in the Act CARRIAGE INN OF STEUBENVILLE, INC