Northern Health Facilties, Inc. d/b/a Mountain City Nursing and Rehabilitation Center

356 NLRB No. 44 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Sec- retary, National Labor Relations Board, Washington, D.C. 20570, of any ty- pographical or other formal errors so that corrections can Northern Health Facilities, Inc. (a subsidiary of Ex- tendicare Health Services, Inc.) d/b/a Mountain City Nursing and Rehabilitation Center and SEIU Healthcare Pennsylvania. Case 4–CA– 37660 December 3, 2010 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE DECISION AND ORDER 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 August 27, 2010, the Acting General Counsel issued the complaint on Sep- tember 13, 2010, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the Act by refusing the Union's request to bargain following the Union's certifi- cation in Case 4–RC–21674. (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 deny- ing in part the allegations in the complaint, and asserting an affirmative defense. On October 4, 2010, the Acting General Counsel filed a Motion for Summary Judgment and memorandum in support. On October 6, 2010, 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 and a cross-motion for summary judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis that the licensed practical nurses included in the unit are supervi- sors and the Union was therefore improperly certified. 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with a long-term care facility at Rear 401-403 Hazle Township Boulevard, Hazle Township, Pennsyl- vania, the Center, has been engaged in providing long- term skilled nursing care and short-term rehabilitative services. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, received gross revenues in excess of $100,000, and purchased and received at the Center goods valued in excess of $5000 directly from points outside the Commonwealth of Pennsylvania. 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, SEIU Healthcare Pennsylvania, 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 June 3 and 4, 2010, the Union was certified on August 13, 2010, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time Licensed Practical Nurses employed at the Center, excluding all Regis- tered Nurses, RNACs, service and maintenance em- ployees, business office and clerical employees, man- agers, guards and 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 At all material times, David Keating held the position of the Respondent’s vice president, and has been a su- pervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. 1 The Respondent’s request that the complaint be dismissed and its cross-motion for summary judgment are therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 On about August 17, 2010, the Union, by letter, re- quested the Respondent to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the unit. On about August 23, 2010, the Re- spondent, by letter from David Keating, advised the Un- ion that the Respondent would not recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. Since about August 23, 2010, the Respondent has refused to recognize and bargain with the Union. We find that this failure and refusal con- stitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since August 23, 2010, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate 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 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); 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, Northern Health Facilities, Inc. (a subsidi- ary of Extendicare Health Services, Inc.), d/b/a Mountain City Nursing and Rehabilitation Center, Hazle Township, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with SEIU Healthcare Pennsylvania, as the exclusive collec- tive-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 collective-bargaining 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 Licensed Practical Nurses employed at the Center, excluding all Regis- tered Nurses, RNACs, service and maintenance em- ployees, business office and clerical employees, man- agers, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Hazle Township, Pennsylvania, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 4, 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respon- dent to ensure that the notices are not altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since August 23, 2010. (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. 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.” MOUNTAIN CITY NURSING & REHABILITATION CENTER 3 Dated, Washington, D.C. December 3, 2010 ______________________________________ Wilma B. Liebman, Chairman ______________________________________ Craig Becker, Member ______________________________________ Mark Gaston Pearce, 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 fail and refuse to recognize and bargain with SEIU Healthcare Pennsylvania, as the exclusive collective-bargaining 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 exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing bargaining unit: All full-time and regular part-time Licensed Practical Nurses employed at the Center, excluding all Regis- tered Nurses, RNACs, service and maintenance em- ployees, business office and clerical employees, man- agers, guards and supervisors as defined in the Act. NORTHERN HEALTH FACILITIES, INC. (A SUBSIDIARY OF EXTENDICARE HEALTH SERVICES, INC.) D/B/A MOUNTAIN CITY NURSING AND REHABILITATION CENTER