Shore Acres Rehabilitation and Nursing Center

352 NLRB No. 106 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. Snell Island SNF LLC d/b/a Shore Acres Rehabilita- tion and Nursing Center, LLC and HGOP, LLC d/b/a Cambridge Quality Care, LLC, Joint Em- ployers and United Food and Commercial Workers Union, Local 1625. Case 12–CA–25854 July 18, 2008 DECISION AND ORDER BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN This is a refusal-to-bargain case in which the Respon- dents are contesting the Union’s certification as bargain- ing representative in the underlying representation pro- ceeding. Pursuant to a charge filed on May 16, 2008, the General Counsel issued the complaint on May 28, 2008, alleging that Snell Island SNF LLC d/b/a Shore Acres Rehabilitation and Nursing Center, LLC (Respondent Shore Acres) and HGOP, LLC d/b/a Cambridge Quality Care, LLC (Respondent HGOP), the Respondents, have 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 12–RC–9281. (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 Respondents filed an answer admitting in part and denying in part the allegations in the complaint, and asserting an affirmative defense. On June 18, 2008, the General Counsel filed a Motion for Summary Judgment. On June 19, 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 Respondents filed a response. Ruling on Motion for Summary Judgment1 The Respondents admit the Union’s request for bar- gaining and their refusal to bargain, but contest the valid- ity of the Union’s certification. The Respondents allege as an affirmative defense that they are refusing to bargain 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. in order to secure judicial review of the certification is- sued by the Board in Case 12–RC–8576.2 All representation issues raised by the Respondents were or could have been litigated in the prior representa- tion proceeding. The Respondents do not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor do they allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondents have 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.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, Respondent Shore Acres, a Flor- ida limited liability company with its principal office and place of business located in St. Petersburg, Florida, has been engaged in the operation of a nursing home provid- ing long-term health care and related services to elderly and disabled adults located at 4500 Indianapolis Street NE, St. Petersburg, Florida. During the 12-month period preceding issuance of the complaint, Respondent Shore Acres, in conducting its business operations described above, derived gross reve- nues in excess of $100,000, and purchased and received at its St. Petersburg, Florida facility, goods valued in excess of $50,000 directly from points outside the State of Florida. We find that Respondent Shore Acres 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. At all material times, Respondent HGOP, a New York limited liability company with its principal office and place of business located in Brooklyn, New York, has been engaged in the business of providing employee staffing services to operators of nursing homes and other health care facilities, including Respondent Shore Acres, located at 4500 Indianapolis Street NE, St. Petersburg, Florida. During the 12-month period preceding issuance of the complaint, Respondent HGOP, in conducting its business operations described above, derived gross revenues in 2 In their answer, the Respondents inadvertently referred to the rep- resentation proceeding as Case 12–RC–8576. The correct case number is 12–RC–9281. 3 Thus, we deny the Respondents’ motion that the complaint be dis- missed in its entirety. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 excess of $500,000, and performed services valued in excess of $50,000 in states other than the State of New York. We find that Respondent HGOP is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all material times, Respondent Shore Acres has pos- sessed control over the labor relations policy of Respon- dent HGOP and has administered a common labor policy with Respondent HGOP with respect to employees on the payroll of Respondent HGOP who are employed at the St. Petersburg, Florida facility. At all material times, Respondent Shore Acres and Re- spondent HGOP have been joint employers of the em- ployees on the payroll of Respondent HGOP who are employed at the St. Petersburg, Florida facility. We find 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 Decem- ber 12, 2007, the Board certified the Union on March 13, 2008, as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time, regular part-time and PRN Certified Nursing Assistants, restorative aides, staffing coordina- tors, ward clerks, central supply clerks, cooks, dietary aides, housekeeping assistants, laundry aides, mainte- nance assistants, activity assistants and receptionists employed by the joint Employers at Shore Acres Reha- bilitation and Nursing Center facility located at 4500 Indianapolis Street, NE, St. Petersburg, Florida, exclud- ing all other employees, including MDS Coordinator, registered nurses, licensed practical nurses, therapists, managerial employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain About March 24, 2008, the Union, by letter, requested that the Respondents recognize and bargain with it as the exclusive collective-bargaining representative of the unit. Since about March 24, 2008, the Respondents have failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful refusal to recognize and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about March 24, 2008, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employ- ees, the Respondents have engaged in unfair labor prac- tices 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 Respondents have violated Sec- tion 8(a)(5) and (1) of the Act, we shall order them to cease and desist, to recognize and 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 Respondents begin 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); 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 Respondents, Snell Island SNF LLC d/b/a Shore Acres Rehabilitation and Nursing Center, LLC and HGOP, LLC d/b/a Cambridge Quality Care, LLC, Joint Employ- ers, St. Petersburg, Florida, and Brooklyn, New York, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Food and Commercial Workers Union, Local 1625, as the exclusive collective-bargaining representa- tive 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 understanding in a signed agreement: All full-time, regular part-time and PRN Certified Nursing Assistants, restorative aides, staffing coordina- tors, ward clerks, central supply clerks, cooks, dietary aides, housekeeping assistants, laundry aides, mainte- nance assistants, activity assistants and receptionists SHORE ACRES REHABILITATION AND NURSING CENTER 3 employed by the joint Employers at Shore Acres Reha- bilitation and Nursing Center facility located at 4500 Indianapolis Street, NE, St. Petersburg, Florida, exclud- ing all other employees, including MDS Coordinator, registered nurses, licensed practical nurses, therapists, managerial employees, guards and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at their facilities in St. Petersburg, Florida, and Brooklyn, New York, copies of the attached notice marked “Ap- pendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondents’ authorized representatives, shall be posted by the Respondents and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondents have gone out of business or closed the facilities involved in these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of the notice to all current employees and former employees employed by the Respondents at any time since March 24, 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 Respondents have taken to comply. Dated, Washington, D.C. July 18, 2008 Peter C. Schaumber, Chairman Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 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.” 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 fail and refuse to recognize and bargain with United Food and Commercial Workers Union, Lo- cal 1625, as the exclusive collective-bargaining represen- tative 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, regular part-time and PRN Certified Nursing Assistants, restorative aides, staffing coordina- tors, ward clerks, central supply clerks, cooks, dietary aides, housekeeping assistants, laundry aides, mainte- nance assistants, activity assistants and receptionists employed by us at Shore Acres Rehabilitation and Nursing Center facility located at 4500 Indianapolis Street, NE, St. Petersburg, Florida, excluding all other employees, including MDS Coordinator, registered nurses, licensed practical nurses, therapists, managerial employees, guards and supervisors as defined in the Act. SNELL ISLAND SNF LLC D/B/A SHORE ACRES REHABILITATION AND NURSING CENTER, LLC AND HGOP, LLC D/B/A CAMBRIDGE QUALITY CARE, LLC, JOINT EMPLOYERS