PruittHealth-Virginia Park, LLC

364 NLRB No. 125 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. Pruitthealth-Virginia Park, LLC and Retail, Whole- sale and Department Store Union/UFCW South- east Council. Case 10–CA–173537 September 22, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN 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 by Retail, Whole- sale and Department Store Union/UFCW Southeast Council on April 8, 2016, and amended charges filed on May 9 and 12, 2016, the General Counsel issued the complaint on May 12, 2016, alleging that PruittHealth- Virginia Park, LLC (the Respondent) has violated Sec- tion 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union following the Un- ion’s certification in Case 10–RC–156997. (Official notice is taken of the record in the representation pro- ceeding 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 denying in part the allegations of the com- plaint, and asserting affirmative defenses.1 On June 24, 2016, the General Counsel filed a Motion for Summary Judgment. On June 28, 2016, 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 Judgment The Respondent admits its refusal to bargain,2 but con- tests the validity of the Union's certification on the basis 1 The Respondent’s answer denies knowledge or information suffi- cient to form a belief concerning the dates that the charges were filed or served upon the Respondent. Copies of the charges and affidavit of service of the charges are included in the documents supporting the General Counsel’s motion, showing the dates as alleged, and the Re- spondent has not challenged the authenticity of these documents. 2 The Respondent’s answer denies the allegations in complaint pars. 10 and 11. These paragraphs state, respectively, the legal conclusions that the Respondent has been failing and refusing to bargain collective- ly and in good faith with the exclusive collective-bargaining representa- tive of its employees in violation of Sec. 8(a)(5) and (1) of the Act, and that the unfair labor practices of the Respondent affect commerce with- in the meaning of Sec. 2(6) and (7) of the Act. Elsewhere in the an- swer, however, the Respondent admits its refusal to bargain and that it is an employer engaged in commerce. Accordingly, the Respondent’s of its objections in the underlying representation pro- ceeding. 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 or 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).3 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 has been a cor- poration with an office and place of business in Atlanta, Georgia (the Respondent’s facility) and has been en- gaged in the business of operating a nursing home for the care of the elderly. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its opera- tions described above, derived gross revenues in excess of $100,000 and purchased and received at the Respond- ent’s facility goods valued in excess of $5000 from sup- pliers located outside the State of Georgia. 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. 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 August 20, 2015, the Union was certified on October 27, 2015, as the exclusive collective-bargaining representative of the employees in the following appropriate unit (the unit): denials with respect to the allegations in pars. 10 and 11 do not raise any material issues of fact to be litigated in this proceeding. 3 Member Miscimarra agrees that summary judgment is appropriate in this unfair labor practice case because the Respondent has not pre- sented any new matters that were not previously resolved in the prior representation case. Member Miscimarra did not participate in the prior representation case, and does not reach or pass on the merits of the Board’s decision in that case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 All full time and regular part time CNA’s, restorative aides, activity assistants, medical record clerks, and service and maintenance employees employed by the Employer at its facility located at 1000 Briarcliff Road N.E., Atlanta, GA, but excluding all RNs, LPNs, charge nurses, confidential employees, professionals, office clerical employees, guards and supervisors as de- fined by 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 November 10, 2015, January 15 and February 17, 2016, the Union, by letter, requested that the Re- spondent recognize it as the exclusive collective- bargaining representative of the unit and bargain collec- tively with the Union as the exclusive collective- bargaining representative of the unit.4 Since about November 20, 2015, 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 the Respondent’s conduct 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. CONCLUSION OF LAW By failing and refusing since about November 20, 2015, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, the Respondent has en- gaged in unfair labor practices affecting commerce with- in 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- 4 The Respondent’s answer admits that the Union requested that the Respondent recognize and bargain with it as the exclusive representa- tive of the unit, but denies that the Union requested to bargain by letter on the dates identified in the complaint. Copies of the letters requesting to bargain are included in the documents supporting the General Coun- sel’s motion, showing the dates as alleged, and the Respondent has not challenged the authenticity of these documents. 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, PruittHealth-Virginia Park, LLC, Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Retail, Wholesale and Department Store Union/UFCW Southeast Council 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 effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: All full time and regular part time CNA’s, restorative aides, activity assistants, medical record clerks, and service and maintenance employees employed by the Employer at its facility located at 1000 Briarcliff Road N.E., Atlanta, GA, but excluding all RNs, LPNs, charge nurses, confidential employees, professionals, office clerical employees, guards and supervisors as de- fined by the Act. (b) Within 14 days after service by the Region, post at its facility in Atlanta, Georgia, copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 10, 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, including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such 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.” PRUITTHEALTH-VIRGINIA PARK, LLC 3 as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily 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 cov- ered by any other material. If 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 current em- ployees and former employees employed by the Re- spondent at any time since November 20, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 10 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. September 22, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra Member ______________________________________ Lauren McFerran, 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 Retail, Wholesale and Department Store Un- ion/UFCW Southeast Council 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: All full time and regular part time CNA’s, restorative aides, activity assistants, medical record clerks, and service and maintenance employees employed by us at our facility located at 1000 Briarcliff Road N.E., Atlan- ta, GA, but excluding all RNs, LPNs, charge nurses, confidential employees, professionals, office clerical employees, guards and supervisors as defined by the Act. PRUITTHEALTH-VIRGINIA PARK, LLC The Board’s decision can be found at www.nlrb.gov/case/10–CA–173537 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.