Saint Mary Home

353 NLRB No. 53 Saint Mary Home and Teamsters Local 671. Case 34– CA–12130 November 28, 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 September 15, 2008, the General Counsel issued the complaint on September 24, 2008, alleging that the Respondent has violated Sec- tion 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–2119. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Sections 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and deny- ing in part the allegations in the complaint and asserting affirmative defenses. On October 21, 2008, the General Counsel filed a Mo- tion for Summary Judgment and supporting memoran- dum. On October 23, 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, the Respondent admits its refusal to bar- gain, but contests the validity of the Union’s certification on the basis of its contentions, raised and rejected in the underlying representation proceeding, that (1) the bar- gaining unit improperly includes statutory supervisors; (2) the unit has experienced substantial turnover and in- crease in size during more than 3 years since the election; and (3) the Regional Director should have ordered a sec- ond election instead of counting the impounded ballots.2 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. 2 The Respondent also argues that, before considering the instant Motion for Summary Judgment, the Board must rule on its (then- pending) request for review of the Regional Director’s Supplemental Decision on Objections and Certification of Representative, as well as its request for review of the Regional Director’s denial of its “Objection to Counting of Ballots and Motion for Second Election” (which the Board treated as a request for special permission to appeal). On No- 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 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 an office located in West Hartford, Connecticut (its facility), has been engaged in the opera- tion of a sub-acute, rehabilitative, and long-term skilled medical care facility. During the 12-month period ending August 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 Teamsters Local 671 (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 May 9, 2005, the Union was certified on August 28, 2008, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time registered nurse (RN) charge nurses and licensed practical nurse (LPN) charge nurses employed by the Respondent at its West Hartford, Connecticut facility; but excluding all clerical vember 6, 2008, the Board issued an unpublished Order denying these requests for review. Thus, the issues raised by the Respondent’s argu- ment in this regard are moot. Moreover, “it is well established that an employer is not relieved of its obligation to bargain with a certified representative pending Board consideration, or reconsideration, of a request for review.” Benchmark Industries, 262 NLRB 247, 248 (1982), enfd. mem. 724 F.2d 974 (5th Cir. 1984); see also Allstate Insurance Co., 234 NLRB 193 (1978). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and casual employees, the administrator, assistant ad- ministrator, director of nursing, assistant director of nursing, infection control nurse, staff development nurse, adult day care coordinator, wellness coordinator, clinical coordinator, MDS coordinators, shift supervi- sors and relief shift supervisors, and guards, other pro- fessional employees and other supervisors as defined 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 By letter dated September 3, 2008, the Union re- quested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about September 3, 2008, the Respondent has failed and refused to recognize and 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 failure and refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about September 3, 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 recognize and bargain on request with the Un- ion, 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); 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, Saint Mary Home, West Hartford, Con- necticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Teamsters Local 761 as the exclusive collective- bargaining representative of the employees in the bar- gaining 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, embody the understanding in a signed agreement: All full-time and regular part-time registered nurse (RN) charge nurses and licensed practical nurse (LPN) charge nurses employed by the Respondent at its West Hartford, Connecticut facility; but excluding all clerical and casual employees, the administrator, assistant ad- ministrator, director of nursing, assistant director of nursing, infection control nurse, staff development nurse, adult day care coordinator, wellness coordinator, clinical coordinator, MDS coordinators, shift supervi- sors and relief shift supervisors, and guards, other pro- fessional employees and other supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in West Hartford, Connecticut, copies of the attached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 34, after being signed by the Respondent’s author- ized 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 September 3, 2008. 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.” SAINT MARY HOME 3 (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. 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 Teamsters Local 671 as the exclusive collective- bargaining representative of the employees in the bar- gaining 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 registered nurse (RN) charge nurses and licensed practical nurse (LPN) charge nurses employed by us at our West Hartford, Connecticut facility; but excluding all clerical and cas- ual employees, the administrator, assistant administra- tor, director of nursing, assistant director of nursing, in- fection control nurse, staff development nurse, adult day care coordinator, wellness coordinator, clinical co- ordinator, MDS coordinators, shift supervisors and re- lief shift supervisors, and guards, other professional employees and other supervisors as defined in the Act. SAINT MARY HOME