OAKRHEEM, INC. d/b/a HAYWARD CONVALESCENT HOSPITAL

372 NLRB No. 7 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. Oakrheem, Inc., d/b/a Hayward Convalescent Hospi- tal and Service Employees International Union, Local 2015. Case 32–CA–294577 December 2, 2022 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX This is a refusal-to-bargain case in which the Respondent Oakrheem, Inc. d/b/a Hayward Convalescent Hospital is con- testing the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge and amended charge filed on April 20 and July 20, 2022, by Service Employees International Union, Local 2015 (the Union),1 the General Counsel issued a complaint on Au- gust 24, 2022, alleging that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act by failing and refusing to rec- ognize and bargain with the Union following the Union’s cer- tification in Case 32-RC-277078. (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 denying in part the alle- gations in the complaint and asserting affirmative defenses. On September 20, 2022, the General Counsel filed a Mo- tion for Summary Judgment. On September 21, 2022, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motion should 1 The Respondent, in its answer to the complaint, states that it is with- out knowledge or information sufficient to form a belief as to the filing and service dates of the charge and amended charge. Copies of the charges and affidavits of service are attached as Exhs. 12 and 13 to the General Counsel’s motion, and the Respondent has not contested the au- thenticity of these documents. Accordingly, we find that the Respondent has not raised any issue regarding filing and service of the charge war- ranting a hearing. See, e.g., U-Haul Co. of Nevada, 345 NLRB 1301, 1301 fn. 1 (2005), enfd. 490 F.3d 957 (D.C. Cir. 2007); Shore Club Con- dominium Assn., 340 NLRB 700, 700 fn. 1 (2003), enfd. 400 F.3d 1336 (11th Cir. 2005). 2 The Respondent, in its answer to the complaint, denies the allegation in par. 6, which sets forth the appropriate unit. In the Stipulated Election Agreement, however, the Respondent agreed that the specified unit is appropriate within the meaning of Sec. 9(b) of the Act; thus, its denial here does not raise a litigable issue in this proceeding. See Wismettac Asian Foods, Inc., 370 NLRB No. 62, slip op. at 1 fn. 1 (2020) (later denial of fact previously stipulated to in representation proceeding did “not raise any litigable issue in [test-of-certification] proceeding”); Biewer Wisconsin Sawmill, Inc., 306 NLRB 732, 732 fn. 1 (1992) (same). not be granted. The Respondent did not file a response to the Notice to Show Cause. 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 of representa- tive based on its objection to the election in the underlying representation proceeding.2 All representation issues raised by the Respondent were or could have been litigated in the prior representation pro- ceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances 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 unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, 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 Oakrheem, Inc. d/b/a Hayward Convalescent Hospital has been a California corpo- ration with an office and place of business located at 1832 B Street, Hayward, California and is engaged in the business of providing convalescent care. The Respondent’s answer also advances affirmative defenses, includ- ing that the complaint fails to state a claim upon which relief can be granted and that it has acted in good faith and has not violated any pro- vision of the Act. The Respondent has not, however, offered any expla- nation or evidence to support these bare assertions, and we find that these affirmative defenses are insufficient to warrant denial of the General Counsel’s Motion for Summary Judgment. See, e.g., Station GVR Ac- quisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018) (citing cases), enfd. sub nom. Int’l Union of Operating Engineers Local 501 v. NLRB, 949 F.3d 477 (9th Cir. 2020); GADecatur SNF LLC d/b/a E. Lake Arbor, 370 NLRB No. 34, slip op. at 1 fn. 1 (2020), enfd. No. 20-1435, 2021 U.S. App. LEXIS 35393 (D.C. Cir. Nov. 30, 2021) (per curiam). Moreover, the Respond- ent admits that it has refused to recognize and bargain with the Union. As such, “the complaint does indeed state claims upon which relief can be granted.” Wolf Creek Nuclear Operating Corp., 366 NLRB No. 30, slip op. at 1 fn. 2 (2018), enfd. 762 F. App’x 461 (10th Cir. 2019). And the Respondent’s purported good faith is not a valid affirmative defense to the allegation that it unlawfully refused to recognize and bargain with the Union. Id. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 In conducting its operations described above, during a twelve-month period ending July 31, 2022, the Respondent derived gross revenues exceeding $100,000 and purchased and received goods or services exceeding $5000 directly from points located outside the State of California. 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, Service Employees International Union, Local 2015, is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election conducted on June 17, 2021, the Regional Director issued a Decision on Objec- tion and Certification of Representative in Case 32-RC- 277078 on July 29, 2021, certifying the Union as the exclu- sive collective-bargaining representative of the employees in the following appropriate unit: All full-time, regular part-time, and on-call Certified Nurs- ing Assistants, Restorative Nursing Assistants, Housekeep- ers, Laundry Aides, Activity Assistants, Janitors, Dietary Aides, and Cooks, employed by the Employer at its facility currently located at 1832 B Street, Hayward, California; ex- cluding all other employees, managers, confidential employ- ees, business office clerical employees, guards, and supervi- sors as defined by the Act. On October 21, 2021, the Board denied the Respondent’s request for review of the Regional Director’s decision. 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 On August 17, 2021, the Union hand delivered a petition to the Respondent’s Administrator requesting that the Re- spondent bargain with the Union as the exclusive collective- bargaining representative of the unit. The Union renewed its request on August 23 (by email and letter), and on October 13, November 10, and December 22, 2021 (verbally). Since at least November 10, 2021, and continuing to date, the Re- spondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of the unit. 3 Member Kaplan would not sever this issue. Instead, he would apply Ex-Cell-O Corp. and deny the General Counsel’s request for a make- whole remedy. We find that the Respondent’s conduct constitutes an un- lawful 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 10, 2021, to recognize and bargain with the Union as the exclusive collec- tive-bargaining representative of the employees in the appro- priate unit, the Respondent has engaged in unfair labor prac- tices 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 agree- ment. 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 certification as beginning on 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); La- mar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that we adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would require overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological framework for calcu- lating such a remedy. The Board has decided to sever this is- sue and retain it for further consideration to expedite the is- suance of this decision regarding the remaining issues in this case.3 The Board will issue a supplemental decision regard- ing a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Re- spondent Oakrheem, Inc. d/b/a Hayward Convalescent Hos- pital, Hayward, California, and its officers, agents, succes- sors, and assigns, shall OAKRHEEM, INC. D/B/A HAYWARD CONVALESCENT HOSPITAL 3 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Ser- vice Employees International Union, Local 2015 (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed 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 concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time, and on-call Certified Nurs- ing Assistants, Restorative Nursing Assistants, Housekeep- ers, Laundry Aides, Activity Assistants, Janitors, Dietary Aides, and Cooks, employed by the Employer at its facility currently located at 1832 B Street, Hayward, California; ex- cluding all other employees, managers, confidential employ- ees, business office clerical employees, guards, and supervi- sors as defined by the Act. (b) Post at its facility in Hayward, California, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized repre- sentative, 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 in- tranet 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 Re- spondent 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 facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and 4 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees has returned to work. If, while closed or not staffed by a substantial complement of employees due to the pan- demic, the Respondent is communicating with its employees by elec- tronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically former employees employed by the Respondent at any time since November 10, 2021. (c) Within 21 days after service by the Region, file with the Regional Director for Region 32 a sworn certification of a responsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 2, 2022 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, 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 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 bene- fit and protection Choose not to engage in any of these protected ac- tivities. posted was posted electronically more than 60 days before physical post- ing of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Rela- tions Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT fail and refuse to recognize and bargain with Service Employees International Union, Local 2015 (the Union) as the exclusive collective-bargaining repre- sentative of our 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 listed above. 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 appropriate bargaining unit: All full-time, regular part-time, and on-call Certified Nursing Assistants, Restorative Nursing Assistants, Housekeepers, Laundry Aides, Activity Assistants, Jan- itors, Dietary Aides, and Cooks, employed by us at the facility currently located at 1832 B Street, Hayward, California; excluding all other employees, managers, confidential employees, business office clerical em- ployees, guards, and supervisors as defined by the Act. OAKRHEEM, INC. D/B/A HAYWARD CONVALESCENT HOSPITAL The Board’s decision can be found at www.nlrb.gov/case/32-CA-294577 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.