735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation Center

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 NLRB No. 138 1058 735 Putnam Pike Operations, LLC d/b/a Greenville Skilled Nursing and Rehabilitation Center and New England Health Care Employees Union, District 1199, a/w Service Employees Interna- tional Union (SEIU). Case 1–CA–46619 April 13, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on January 11, 2011, and an amended charge on January 20, 2011, the Acting General Counsel issued the complaint and notice of hearing and an amendment to complaint on January 24 and 31, 2011, respectively, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 1–RC–22474. (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 a consolidated answer to complaint and amendment to complaint admitting in part and denying in part the allegations in the complaint. On February 8, 2011, the Acting General Counsel filed a Motion for Summary Judgment. On February 10, 2011, 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. The Acting General Counsel filed a reply to the Respond- ent’s response. 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 Union’s certification on the basis that the unit is inappropriate. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence. The Respondent asserts for the first time in its response to the Notice to Show Cause that the premature issuance of the certification of representative, which the Region issued 1 day before the Respondent’s time to file objections to the election had lapsed, constitutes a special circumstance that requires the Board to reexamine the decision made in the representation proceeding. We find no merit in this contention. The undisputed facts show that the election was held on October 15, 2010, and the Regional Director issued a tally of ballots on November 23. Under the Board’s Rules, any objections to the election were to be filed within 7 days, i.e., by November 30. However, the Regional Director prematurely issued a certification of representative on No- vember 29, stating that no timely objections had been filed.1 Thereafter, on December 2, the Acting Regional Director issued a corrected certification of representative, again indicating no timely objections had been filed. On these facts, we cannot conclude that the Respondent was denied a reasonable opportunity to exercise its right to challenge the election due to the premature issuance of the certification. First, there is no evidence that the Respond- ent raised the premature issuance of the certification to the Region in the representation proceeding, asserted to the Region that it had a basis on which to file objections, or proffered any objections to the Region. In addition, the Respondent did not refer to the premature issuance of the certification in its response to the Union’s request to bar- gain, or in its communications with the Region regarding the unfair labor practice charges. The Respondent merely indicated that it was refusing to bargain because it intend- ed to challenge the Board’s unit determination in the un- derlying representation proceeding. Second, even assuming that the Respondent believed it was precluded from addressing this issue in the underlying representation proceeding, it had the opportunity to raise this asserted preclusion in its answer to the complaint. However, it failed to do so. Further, despite its protesta- tions that the corrected certification did not cure the Re- gion’s error of issuing the original certification before the Respondent had an opportunity to file objections, the Re- spondent has never submitted any election objections for the Board’s consideration or indicated what actual preju- dice it suffered from the premature issuance of the certifi- cation. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). According- ly, we grant the Motion for Summary Judgment.2 1 The Respondent does not refute the Acting General Counsel’s statement that this certification was mailed to the parties. Thus, it is apparent that the earliest date on which the Respondent could have received the certification was on the day its objections were due. 2 Member Hayes would have granted review in the underlying repre- sentation proceeding. He agrees, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceeding or reconsideration of the decision in the representation proceeding, and that summary judgment is appropriate. GREENVILLE SKILLED NURSING & REHABILITATION CENTER 1059 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Greenville, Rhode Island (the Greenville facility), has been engaged in the operation of a skilled nursing and rehabilitation center. Annually, the Respondent, in conducting its business operations described above, derived gross revenues in excess of $100,000, and purchased and received at its Greenville facility goods valued in excess of $50,000 di- rectly from points outside the State of Rhode Island. 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 that the Union, New England Health Care Employees Union, District 1199, a/w Service Employees International Union (SEIU), is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following a representation election conducted on Octo- ber 15, 2010, the Union was certified on December 2, 2010,3 as the exclusive collective-bargaining representa- tive of the employees in the following appropriate unit: All full-time and regular part-time registered nurses, including per diem registered nurses but excluding the director of nursing, day supervisor/unit manager, nurse practice educator, floating shift supervisor, MDS coordinator, 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 On about November 30, 2010, the Union, by letter, de- manded that the Respondent meet and bargain with it over the terms and conditions of employment of the newly cer- tified unit. By facsimile dated January 6, 2011, the Re- spondent 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 failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. 3 As noted above, the Acting Regional Director issued a corrected certification on December 2, 2010. CONCLUSION OF LAW By failing and refusing since January 6, 2011, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.4 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 un- derstanding 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 certifica- tion as beginning the date the Respondent begins to bar- gain 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 Re- spondent, 735 Putnam Pike Operations, LLC d/b/a Green- ville Skilled Nursing and Rehabilitation Center, Green- ville, Rhode Island, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with New England Health Care Employees Union, District 1199, a/w Service Employees International Union (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 ef- fectuate 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: 4 Although the Union’s request to bargain predates the corrected cer- tification, it is undisputed that the Respondent’s refusal to bargain postdated that certification, and that it continues to refuse to bargain. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060 All full-time and regular part-time registered nurses, including per diem registered nurses but excluding the director of nursing, day supervisor/unit manager, nurse practice educator, floating shift supervisor, MDS coordinator, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Greenville, Rhode Island, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, 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.6 Rea- sonable steps shall be taken by the Respondent 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 busi- ness or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 6, 2011. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 5 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.” 6 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. 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 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 benefit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT fail and refuse to recognize and bargain with New England Health Care Employees Union, District 1199, a/w Service Employees International Union (SEIU), 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 con- ditions of employment for our employees in the following bargaining unit: All full-time and regular part-time registered nurses, including per diem registered nurses but excluding the director of nursing, day supervisor/unit manager, nurse practice educator, floating shift supervisor, MDS coordinator, guards and supervisors as defined in the Act. 735 PUTNAM PIKE OPERATIONS, LLC D/B/A GREENVILLE SKILLED NURSING AND REHABILITATION CENTER Filename: 356138.doc Directory: H:\VOLUMES\356\UNBIND\Unbind bat3 Template: C:\Documents and Settings\plogan\Application Data\Microsoft\Templates\Editorial Templates\NewD&O.dot Title: BARBARA COPE, A SOLE PROPRIETOR, Subject: Author: plogan Keywords: Comments: Creation Date: 4/13/2011 2:38:00 PM Change Number: 11 Last Saved On: 12/3/2012 11:00:00 AM Last Saved By: philliar Total Editing Time: 20 Minutes Last Printed On: 7/10/2014 7:35:00 AM As of Last Complete Printing Number of Pages: 3 Number of Words: 1,844 (approx.) 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