Bloomfield Health Care Center

352 NLRB No. 94 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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. Bloomfield Health Care Center and New England Health Care Employees Union, District 1199, SEIU. Case 34–CA–12029 June 27, 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.1 Pursuant to a charge filed on April 23, 2008, the General Counsel issued the complaint on May 1, 2008, 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 34–RC– 2172. (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 Respondent filed an answer admitting in part and denying in part the allega- tions in the complaint, and asserting an affirmative de- fense. On May 27, 2008, the General Counsel filed a Motion for Summary Judgment. On May 29, 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 Judgment2 The Respondent admits that it has refused to bargain, but contests the validity of the certification on the basis of its objections to the election in the representation pro- ceeding. All representation issued raised by the Respon- dent were or could have been litigated in the prior repre- sentation proceeding. The Respondent does not offer to adduce 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 1 352 NLRB No. 39 (2008). 2 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. 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 Bloomfield, Con- necticut, herein called its facility, has been engaged in the operation of a nursing home providing skilled nursing care. During the 12-month period ending March 31, 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 $5000 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, New England Health Care Employees Union, District 1199, SEIU, 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 May 18, 2006, the Union was certified on March 20, 2008, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time service and mainte- nance employees, including all certified nursing assis- tants, rehabilitation aides, dietary aides, recreation aides, cooks, housekeepers, laundry aides, sched- uler/supply coordinators, receptionists, and mainte- nance employees; but excluding all business office clerical employees, certified therapeutic recreation di- rectors, payroll clerks, and all other employees, and all professional employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain By letters dated March 26 and April 17, 2008, the Un- ion requested that the Respondent bargain with it as the exclusive collective-bargaining representative of the unit. Since about March 26, 2008, the Respondent has failed DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since about March 26, 2008, to recognize and bargain with the Union as the exclusive collective- bargaining representative of the unit employees, the Re- spondent 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 Charging 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); and 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, Bloomfield Health Care Center, Bloomfield, Connecticut, 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, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and, if an understanding is reached, em- body the agreement in a signed agreement: All full-time and regular part-time service and mainte- nance employees, including all certified nursing assis- tants, rehabilitation aides, dietary aides, recreation aides, cooks, housekeepers, laundry aides, sched- uler/supply coordinators, receptionists, and mainte- nance employees; but excluding all business office clerical employees, certified therapeutic recreation di- rectors, payroll clerks, and all other employees, and all professional employees, guards and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bloomfield, Connecticut, copies of the at- tached notice marked “Appendix.”3 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 March 26, 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 27, 2008 Peter C. Schaumber, Chairman Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES 3 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.” BLOOMFIELD HEALTH CARE CENTER POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board had found that we violated 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 service and main- tenance employees, including all certified nursing assistants, rehabilitation aides, dietary aides, recrea- tion aides, cooks, housekeepers, laundry aides, scheduler/supply coordinators, receptionists, and maintenance employees; but excluding all business office clerical employees, certified therapeutic rec- reation directors, payroll clerks, and all other em- ployees, and all professional employees, guards and supervisors as defined in the Act. BLOOMFIELD HEALTH CARE CENTER