GGNSC Springfield LLC d/b/a Golden Living Center - Springfield

358 NLRB No. 27 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. GGNSC Springfield LLC d/b/a Golden Living Cen- ter–Springfield and International Association of Machinists and Aerospace Workers, AFL–CIO. Case 26–CA–072684 April 9, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN 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 by the Union on January 19, 2012, the Acting General Counsel issued the com- plaint on February 9, 2012, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to recognize and bargain follow- ing the Union’s certification in Case 26–RC–067840. (Official notice is taken of the “record” in the representa- tion 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 allegations in the complaint, and asserting defenses. On February 28, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On February 29, 2012, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a 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 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 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.1 See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.2 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 an office and place of business in Spring- field, Tennessee, has been engaged in the operation of a skilled nursing facility. During the 12-month period ending December 31, 2011, the Respondent, in conducting its business opera- tions described above, derived gross revenues in excess of $100,000 and purchased and received at its Spring- field, Tennessee facility goods and/or supplies valued in excess of $50,000 directly from points outside the State of Tennessee. 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 has been a health care institution within the meaning of Section 2(14) of the Act, and that the Union, International Association of Machinists and Aerospace Workers, AFL–CIO, 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 29, 2011, the Union was certified on January 6, 2012, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time registered nurses employed by Respondent at its Springfield, Tennessee facility. Excluded: All other employees, including, all directors of nursing, assistant directors of nursing, directors of clinical education, resident nursing assessment coordi- nators, minimum data set coordinators, medical records coordinators, admissions directors, dietary employees, activities employees, social services employees, li- censed practical nurses, certified nursing assistants, contract personnel, housekeeping employees, mainte- 1 Member Griffin did not participate in the underlying representation 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 therefore appropriate. 2 The Respondent’s request that the complaint be dismissed and that it be awarded its costs and attorneys’ fees is therefore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 nance employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain About January 11, 2012, the Union, by letter, re- quested the Respondent to recognize and bargain collec- tively with it as the exclusive collective-bargaining rep- resentative of the unit. By email dated January 17, 2012, and by letter dated January 19, 2012, the Respondent’s attorney informed the Union that the Respondent had decided to test the certification of the unit employees, and that a technical refusal to bargain was procedurally required. Since about January 17, 2012, the Respondent has failed and refused to recognize and bargain with the Un- ion as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal consti- tutes 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 about January 17, 2012, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit 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 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, GGNSC Springfield LLC d/b/a Golden Liv- ing Center–Springfield, Springfield, Tennessee, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Association of Machinists and Aerospace Workers, AFL–CIO 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, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: Included: All full-time and regular part-time registered nurses employed by Respondent at its Springfield, Tennessee facility. Excluded: All other employees, including, all directors of nursing, assistant directors of nursing, directors of clinical education, resident nursing assessment coordi- nators, minimum data set coordinators, medical records coordinators, admissions directors, dietary employees, activities employees, social services employees, li- censed practical nurses, certified nursing assistants, contract personnel, housekeeping employees, mainte- nance employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Springfield, Tennessee, copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 26, 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. 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 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.” GOLDEN LIVING CENTER–SPRINGFIELD 3 customarily communicates with its employees by such means.4 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 January 17, 2012. (c) Within 21 days after service by the Region, file with the Regional Director for Region 26 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 9, 2012 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Brian E. Hayes, Member ______________________________________ Richard F. Griffin, Jr., 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 4 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec- tronic distribution of the notice. 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 International Association of Machinists and Aero- space Workers, AFL–CIO 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 listed above. 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: Included: All full-time and regular part-time registered nurses employed by us at our Springfield, Tennessee facility. Excluded: All other employees, including, all directors of nursing, assistant directors of nursing, directors of clinical education, resident nursing assessment coordi- nators, minimum data set coordinators, medical records coordinators, admissions directors, dietary employees, activities employees, social services employees, li- censed practical nurses, certified nursing assistants, contract personnel, housekeeping employees, mainte- nance employees, office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act. GGNSC SPRINGFIELD LLC D/B/A GOLDEN LIVING CENTER–SPRINGFIELD