Lakepointe Senior Care and Rehab Center, L.L.C.

984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 114 Lakepointe Senior Care and Rehab Center, LLC and SEIU Healthcare Michigan. Case 07–CA– 162939 February 11, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA 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 October 28, 2015, by SEIU Healthcare Michigan (the Union), the General Counsel issued the complaint on November 10, 2015, alleging that Lakepointe Senior Care and Rehab Center, LLC (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certifica- tion in Case 07–RC–143710. (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(d). 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 November 24, 2015, the General Counsel filed a Motion for Summary Judgment. On November 25, 2015, 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 Union’s certification based on its contentions, raised and rejected below, that the petition in the underlying representation proceeding should have been dismissed because of the controlling determination made in a prior representation matter involving the same parties, in which the then-Regional Director found the nurses at issue to be statutory supervisors. The Respond- ent further contends that the bargaining unit in this pro- ceeding is comprised of nurses who are supervisors with- in the meaning of the Act, and is therefore 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. 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 has been a cor- poration with an office and place of business in Clinton Township, Michigan (the Respondent’s facility), and has been engaged in the operation of a residential nursing facility. In conducting its operations during the 12-month peri- od ending October 31, 2015, a representative period, the Respondent derived gross revenues in excess of $100,000, and purchased and received at its facility products, goods, and materials in excess of $5000 direct- ly from points outside the State of Michigan. 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 healthcare institution within the meaning of Section 2(14) of the Act. We further 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 June 26, 2015, the Union was certified on July 7, 2015, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time, regular part-time, and contingent charge nurses and wound care nurses employed by the Re- spondent at its facility located at 37700 Harper, Clinton Township, Michigan; but excluding all MDS nurses, all other 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 Since about August 20, 2015, by electronic mail mes- sages to the Respondent’s designated labor counsel, the Union requested that the Respondent recognize and bar- gain with it as the exclusive collective-bargaining repre- sentative of the unit. Since about August 20, 2015, the 1 The Respondent’s requests that the complaint be dismissed and that it be awarded its actual attorney fees and costs under the Equal Access to Justice Act are therefore denied. LAKEPOINTE SENIOR CARE & REHAB CENTER, LLC 985 Respondent has failed and refused to recognize and bar- gain with the Union. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since August 20, 2015, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of the 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 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 Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Lakepointe Senior Care and Rehab Center, LLC, Clinton Township, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with SEIU Healthcare Michigan 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and contingent charge nurses and wound care nurses employed by the Re- spondent at its facility located at 37700 Harper, Clinton Township, Michigan; but excluding all MDS nurses, all other employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility at 37700 Harper, Clinton Township, Michi- gan, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Re- spondent’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 dis- tributed 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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facili- ty 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 August 20, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 7 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. LAKEPOINTE SENIOR CARE AND REHAB CENTER, LLC 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986 The Board’s decision can be found at www.nlrb.gov/case/07–CA–162939 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.