Beverly Manor of Reading

National Labor Relations Board - Board Decisions

Dec 21, 1998

327 N.L.R.B. 312 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
Beverly Enterprises—Pennsylvania, Inc. d/b/a Bev-
erly Manor of Reading1 and District 1199P, Ser-
vice Employees International Union, AFL–CIO,
CLC. Case 4–CA–27383–1
December 21, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Pursuant to a charge2 filed on August 17, 1998, the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on September
30, 1998, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act
by refusing the Union’s request to bargain following the
Union’s certification in Case 4–RC–19181. (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(g); Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint.
On October 29, 1998, the General Counsel filed a Mo-
tion for Summary Judgment and Memorandum in Sup-
port. On November 3, 1998, 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 National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis the Board’s unit determination in the representation
proceeding.
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).

1 As set forth in the Respondent’s answer to the complaint and ac-
knowledged by the General Counsel in his Motion for Summary Judg-
ment, Beverly California Corporation is actually the parent corporation
of the corporation that owns and operates Beverly Manor of Reading.
The correct name of the Employer is as set forth above.
2 On August 17, 1998, the Union also filed a separate unfair labor
practice charge, Case 4–CA–27383–2, alleging that the Respondent is
refusing to provide information. The Board has suspended the prosecu-
tion of that case pending resolution of the instant Motion for Summary
Judgment.
The Respondent’s reliance on the adverse decisions of
the Third and Sixth Circuits in charge nurse cases fails to
consider that the Board’s position has been upheld by the
Eighth, Ninth, and District of Columbia Circuits. Lyn-
wood Health Care Center, Minnesota, Inc. v. NLRB, 148
F.3d 1042 (9th Cir. 1998), enfg. 323 NLRB No. 200
(July 3, 1997) (not reported in Board volumes); Grand-
view Health Care Center v. NLRB, 129 F.3d 1269 (D.C.
Cir. 1997), enfg. 322 NLRB No. 54 (Oct. 15, 1996) (not
reported in Board volumes); Providence Alaska Medical
Center v. NLRB, 121 F.3d 548 (9th Cir. 1997), enfg. 321
NLRB No. 100 (July 10, 1996) (not reported in Bound
volumes). Moreover, we do not agree that the Third Cir-
cuit’s holding in Passavant Retirement and Health Cen-
ter v. NLRB, 149 F.3d 243 (3d Cir. 1998), denying enf. to
323 NLRB 598 (1997), that licensed practical nurses in
question were statutory supervisors by virtue of their
grievance adjustment authority, is necessarily dispositive
of this case. The Passavant court stated that it was “not
creating a per se rule that LPNs are supervisors” and that
each case required its own detailed factual analysis. Id.
at 249. Here, the evidence of grievance adjustment au-
thority cited in the Respondent’s request for review was
limited to two incidents. The Regional Director reasona-
bly concluded that the record, including these incidents,
failed to establish that the nurses “play a significant role
in grievance proceeding” and, instead, showed that “in
practice all grievances have been submitted at higher
levels.”
Accordingly, we grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a California
corporation, has been engaged in providing nursing care,
inpatient medical and professional care, and services for
the elderly, sick, and infirm at the facility involved
herein known as Beverly Manor of Reading, located at
21 Fairlane Road, Mount Penn, Pennsylvania (Reading
facility).
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, derived gross revenues in excess of $100,000
and purchased and received at the Reading facility goods
3 Member Hurtgen did not participate in the underlying representa-
tion case. He does not necessarily agree with it. However, he agrees
that the Respondent does not raise any new factual matters, and thus
summary judgment is appropriate. Similarly, although there are court
decisions which may well be inconsistent with the legal conclusion
reached in the representation case, Member Hurtgen agrees, for institu-
tional reasons, not to challenge that representation case in this certifica-
tion-testing 8(a)(5) case. See Pittsburgh Plate Glass, supra. Finally,
and for the same reasons, Member Hurtgen does not pass on the effort
herein to further support the conclusion reached in the representation
case.
327 NLRB No. 62
BEVERLY ENTERPRISES—PENNSYLVANIA, INC. 291
valued in excess of $10,000 directly from points outside
the Commonwealth of Pennsylvania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7), a health care institution within the meaning of Sec-
tion 2(14) of the Act, and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 30, 1998, the Union
was certified on May 11, 1998, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

Included: All full-time and regular part-time Licensed
Practical Nurses (LPNs) and LPN Charge Nurses em-
ployed by Respondent at its Reading, Pennsylvania fa-
cility.

Excluded: Registered Nurses, professional employees,
guards, and supervisors as defined in the Act.

The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On or about July 10, 1998, the Union, by letter, re-
quested that the Respondent bargain, and, since on or
about July 10, 1998, the Respondent has failed and re-
fused. We find that this failure and refusal constitutes an
unlawful refusal to bargain in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
By failing and refusing on and after July 10, 1998, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
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 agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, Beverly Enterprises-Pennsylvania, Inc.
d/b/a Beverly Manor of Reading, Mount Penn, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with District 1199P, Service
Employees International Union, AFL–CIO, CLC as the
exclusive 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:

Included: All full-time and regular part-time Licensed
Practical Nurses (LPNs) and LPN Charge Nurses em-
ployed by Respondent at its Reading, Pennsylvania fa-
cility.

Excluded: Registered Nurses, professional employees,
guards, and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Mount Penn, Pennsylvania, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-
ity 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 July 10,
1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

4 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 292
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with District 1199P,
Service Employees International Union, AFL–CIO, CLC
as the exclusive 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
conditions of employment for our employees in the bar-
gaining unit:

Included: All full-time and regular part-time Licensed
Practical Nurses (LPNs) and LPN Charge Nurses em-
ployed by us at our Reading, Pennsylvania facility.

Excluded: Registered Nurses, professional employees,
guards, and supervisors as defined in the Act.

BEVERLY ENTERPRISES—
PENNSYLVANIA, INC. D/B/A BEVERLY
MANOR OF READING