Talmadge Park, Inc.

352 NLRB No. 90 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- 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. Talmadge Park, Inc. and New England Health Care Employees Union, District 1199, SEIU. Case 34– CA–12003 June 26, 2008 DECISION AND ORDER BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN 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 March 13, 2008, the General Counsel issued the complaint on March 21, 2008, 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 34- RC-2136. (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, and alleging an affirmative defense. On April 22, 2008, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support of Motion. On May 13, 2008, 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. Ruling on Motion for Summary Judgment1 In its answer and response, the Respondent admits that it has refused to bargain, but attacks the validity of the certification on the basis of its objections to the election in the representation proceeding and its assertion that the Board’s decision in the representation proceeding is in- consistent with Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006). 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 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 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 Connecticut corporation with a facility located in East Haven, Con- necticut, has been engaged in the operation of a nursing home providing skilled nursing care. During the 12-month period ending February 29, 2008, the Respondent, in conducting its operations described above, derived gross revenues in excess of $100,000 and purchased and received at its facility goods valued in excess of $5,000 directly from points outside the State of Connecticut. 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 a health care institution within the meaning of Section 2(14) 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 representation election held on Septem- ber 8, 2005, the Union was certified on December 28, 2007, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time certified nursing as- sistants (CNAs), lead CNAs, housekeeping employees, laundry employees, cooks, dietary aides, cook/dietary aides, carpenter, nurse scheduler, receptionists, courier, physical therapy/rehab aide, and maintenance employ- ees employed by the Respondent at its East Haven, Connecticut facility; but excluding licensed practical nurses, the RCP/MDS Coordinator, the administrator, director of nurses, assistant director of nurses, dietary service director, business office manager, assistant business office manager, environmental services direc- tor, recreation program director, rehabilitation director, social services director, shift supervisors, and guards, other professional employees and other supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 B. Refusal to Bargain By letters dated January 10 and February 11, 2008, the Union requested, inter alia, that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the Unit. Since about January 10, 2008, the Respondent has failed and refused to bargain with the Union as the exclusive collective-bargaining representa- tive of the unit. We find that this failure and refusal con- stitutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about January 10, 2008, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employ- ees, 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 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, Talmadge Park, Inc., East Haven, Connecti- cut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with New Eng- land Health Care Employees Union, District 1199, SEIU, as the exclusive collective-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 agreement in a signed agreement: All full-time and regular part-time certified nursing as- sistants (CNAs), lead CNAs, housekeeping employees, laundry employees, cooks, dietary aides, cook/dietary aides, carpenter, nurse scheduler, receptionists, courier, physical therapy/rehab aide, and maintenance employ- ees employed by the Respondent at its East Haven, Connecticut facility; but excluding licensed practical nurses, the RCP/MDS Coordinator, the administrator, director of nurses, assistant director of nurses, dietary service director, business office manager, assistant business office manager, environmental services direc- tor, recreation program director, rehabilitation director, social services director, shift supervisors, and guards, other professional employees and other supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its East Haven, Connecticut facility, copies of the at- tached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized 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- 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 January 10, 2008. (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. June 26, 2008 Peter C. Schaumber, Chairman 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.” TALMADGE PARK, INC. 3 Wilma B. Liebman, 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 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 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 recognize and bargain with New England Health Care Employees Union, District 1199, SEIU, as the exclusive collective-bargaining repre- sentative 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, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining unit: All full-time and regular part-time certified nursing as- sistants (CNAs), lead CNAs, housekeeping employees, laundry employees, cooks, dietary aides, cook/dietary aides, carpenter, nurse scheduler, receptionists, courier, physical therapy/rehab aide, and maintenance employ- ees employed by us at our East Haven, Connecticut fa- cility; but excluding licensed practical nurses, the RCP/MDS Coordinator, the administrator, director of nurses, assistant director of nurses, dietary service di- rector, business office manager, assistant business of- fice manager, environmental services director, recrea- tion program director, rehabilitation director, social services director, shift supervisors, and guards, other professional employees and other supervisors as de- fined in the Act. TALMADGE PARK, INC.