Flatbush Manor Care Center

National Labor Relations Board - Board Decisions

Aug 11, 1994

314 N.L.R.B. 702 (N.L.R.B. 1994)

702
314 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We reject the Respondents’ contention that the underlying charge
in this proceeding is barred by Sec. 10(b) of the Act. As set forth
in the General Counsel’s Motion for Summary Judgment, requests
for review were pending until August 19, 1993. Neither Sec. 10(b)
nor the certification year is involved here and neither requires that
a union request bargaining while an employer’s request for review
of a Regional Director’s certification is pending.
2 Although the Respondents deny the complaint’s allegation that
the Union is a labor organization, we do not find this denial raises
an issue warranting a hearing. As noted by the General Counsel, the
Board has previously found the Union to be a labor organization.
See Miscellaneous Warehousemen Local 986, 145 NLRB 1511, 1514
(1964). In any event, having failed to raise this issue in the under-
lying representation proceeding, the Respondents are now precluded
from raising it in this proceeding. See Wickes Furniture, 261 NLRB
1061, 1062 fn. 4 (1982).
3 We also reject the Respondents second affirmative defense, viz
‘‘by requiring inclusion in the bargaining unit classifications ex-
cluded from the Board certified unit in Case No. 29–RC–7764.’’ The
Union’s letter of November 8, 1993, clearly evidences that the
Flatbush Manor Care Center and Fair Manage-
ment Consulting Corp. and 1199 National
Health and Human Services Employees Union
Case 29–CA–17645
August 11, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On November 23, 1993, the General Counsel of the
National Labor Relations Board issued a Complaint
and notice of hearing alleging that Respondent
Flatbush Manor Care Center (individually Respondent
Flatbush) and Fair Management Consulting Corp., Inc.
(individually Respondent Fair, and collectively the Re-
spondents) have violated Section 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 29–RC–7764. (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(g); Frontier Hotel, 265 NLRB 343 (1982).)
The Respondents filed an answer admitting in part and
denying in part the allegations in the complaint.
On June 7, 1994, the General Counsel filed a Mo-
tion for Summary Judgment. On June 9, 1994, 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 Respondents filed a re-
sponse.
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 Respondents deny their refusal to
bargain and attack the validity of the certification on
the basis of their objections to the election and the
Board’s unit determination in the representation pro-
ceeding. In addition, in its answer to the complaint the
Respondents allege that the complaint is barred by
Section 10(b) of the Act as the Union was certified by
the Regional Director in Case 29–RC–7764 on August
5, 1992, and the charge was not filed and served until
September 22, 1993.1
The Respondents deny that Respondent Flatbush and
Respondent Fair have been affiliated business enter-
prises with common officials, owners, directors, man-
agement and supervision; have formulated and admin-
istered a common labor policy affecting employees of
these operations; have shared common premises and
facilities; have provided services for and made sales to
each other; have interchanged personnel with each
other; and have held themselves out to the public as
a single integrated business enterprise. The Respond-
ents further deny that they constitute a single inte-
grated business enterprise and are a single employer
within the meaning of the Act. In addition, the Re-
spondents deny that they are now, and have been em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and are health
care institutions within the meaning of Section 2(14)
of the Act. The Respondents do not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor do they allege any special cir-
cumstances that would require the Board to reexamine
its decision as to these matters in the representation
proceeding. We therefore find that Respondent
Flatbush and Respondent Fair constitute a single inte-
grated business enterprise and a single employer within
the meaning of the Act.
The Respondents deny that the Union is now and
has been a labor organization within the meaning of
Section 2(5) of the Act,2 that the unit is appropriate for
purposes of collective bargaining, that an election by
secret ballot was conducted, that the Union was cer-
tified as the exclusive collective-bargaining representa-
tive of the Respondents’ employees, and that the
Union is the collective-bargaining representative of the
employees in the unit with respect to rates of pay,
wages, hours of employment, and other terms and con-
ditions of employment. Each of these issues were or
could have been litigated in the underlying representa-
tion case.
The Respondents also deny that the Union has re-
quested that the Respondents recognize and bargain
with it as the exclusive collective-bargaining represent-
ative of the employees. Counsel for the General Coun-
sel attached to the Motion for Summary Judgment two
letters to the Respondents from the Union dated Au-
gust 23 and November 8, 1993. These letters constitute
requests to bargain. The Respondents do not dispute
the receipt or authenticity of these letters.3 Accord-
703FLATBUSH MANOR CARE CENTER
Union is not demanding bargaining in a unit broader than that cer-
tified.
4 In its response to the Notice to Show Cause the Respondents
argue that the Board should remand the representation proceeding to
the Regional Director because the unit here includes licensed prac-
tical nurses. The Respondents never raised the issue of supervisory
status of LPNs in the representation proceeding and are thus barred
from raising it here. Moreover, we note that while the Respondents
assert that the matter should be remanded in light of the Supreme
Court’s decision in NLRB v. Health Care & Retirement Corp. of
America, 114 S.Ct. 1778 (1994), (1994), it does not specifically as-
sert that the LPNs here are supervisors.
ingly, we find that the Union has requested bargaining
with the Respondents.
The Respondents’ answer further denies that they
have refused to recognize and bargain with the Union.
However, by letter dated November 22, 1993, counsel
for the Respondents clearly refused to bargain with the
Union. The General Counsel attached this letter to the
Motion for Summary Judgment and the Respondents
do not dispute its authenticity. Nor does the Respond-
ents’ response to the Notice to Show Cause state a
willingness to meet and bargain with the Union. Ac-
cordingly, we find that the Respondents have failed
and refused to recognize and bargain with the Union.
All representation issues raised by the Respondents
were or could have been litigated in the prior represen-
tation proceeding. The Respondents do not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor do they allege any special
circumstances that would require the Board to reexam-
ine the decision made in the representation pro-
ceeding.4 We therefore find that the Respondents have
not raised any representation issues that are properly
litigable in this unfair labor practice proceeding. 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 times material, Respondent Flatbush, a part-
nership, with its office and place of business located
at 2107 Ditmas Avenue, in the Borough of Brooklyn,
city and State of New York, has been the licensed op-
erator of a nursing home, providing health care serv-
ices and related services. During the year preceding
issuance of the complaint, Respondent Flatbush, in the
course and conduct of its business operations, derived
gross revenues in excess of $100,000 and purchased
and received at its Brooklyn facility, medical supplies
and other products, goods, and materials valued in ex-
cess of $50,000, directly from other enterprises located
outside the State of New York.
At all times material, Respondent Fair, a New York
Corporation, with its principal office and place of busi-
ness located at 2107 Ditmas Avenue, in the Borough
of Brooklyn, city and State of New York, has been en-
gaged in the business of providing employee staffing,
payroll, and other related services to Respondent
Flatbush. During the past 12 months preceding
issuance of the complaint, Respondent Fair, in the
course and conduct of its business operations, derived
gross revenues in excess of $100,000, and purchased
and received at its Brooklyn facility medical supplies
and other products, goods, and materials valued in ex-
cess of $50,000 directly from other enterprises located
outside the State of New York.
At all times material, Respondent Flatbush and Re-
spondent Fair, in the course and conduct of its busi-
ness operations, derived gross revenues in excess of
$100,000 and purchased and received at its Brooklyn
facility medical supplies and other products, goods,
and materials valued in excess of $50,000, directly
from other enterprises located outside the State of New
York.
At all times material, Respondent Flatbush and Re-
spondent Fair have been affiliated business enterprises
with common officers, owners, directors, management,
and supervision; have formulated and administered a
common labor policy affecting employees of these op-
erations; have shared common premises and facilities;
have provided services for and made sales to each
other; have interchanged personnel with each other,
and have held themselves out to the public as a single
integrated business enterprise.
By virtue of their operations the Respondents con-
stitute a single integrated business enterprise and a sin-
gle employer within the meaning of the Act. We find
that the Respondents are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act and are health care institutions within the
meaning of Section 2(14) of the Act. The Union is
now, and has been at all times material, a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held March 12, 1992, the
Union was certified on August 19, 1993, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time employees em-
ployed by Respondents at their Brooklyn, New
York locations, including aides, recreational aides,
orderlies, dietary employees and licensed practical
nurses, excluding all ‘‘pool’’ licensed practical
nurses, housekeeping employees, registered
nurses, social workers, occupational therapists,
physical therapists, speech therapists, office cler-
ical and business office clerical employees, Medi-
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 As noted in the General Counsel’s motion, the Union’s letter also
sought certain information from the Respondents. That request is the
subject of a separate charge in Case 29–CA–17899, which is not
now before us.
6 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 Relations Board.’’
cal Directors, Nursing Supervisors, In-Service Di-
rectors, Rehabilitation Supervisors, Infection Con-
trol Nurses, Administrators, Assistant Administra-
tors, Bookkeeping Supervisors, Directors of Nurs-
ing, Plant Maintenance Directors, Dietary Direc-
tors, Recreation Directors, Purchasing Directors,
Admissions Directors, Medical Records Directors,
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
Since on or about August 23, 1993, and on or about
November 8, 1993, the Union has requested the Re-
spondents to bargain, and since August 23, 1993, the
Respondents have refused. We find that this refusal
constitutes an unlawful refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after August 23, 1993, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit,5 the Respondents have 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 Respondents have violated
Section 8(a)(5) and (1) of the Act, we shall order them
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 serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondents begin 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
Respondents, Flatbush Manor Care Center and Fair
Management Consulting Corp., Brooklyn, New York,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199 National Health
and Human Services Employees Union, as the exclu-
sive bargaining representative of the employees in the
bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time employees em-
ployed by Respondents at their Brooklyn, New
York locations, including aides, recreational aides,
orderlies, dietary employees and licensed practical
nurses, excluding all ‘‘pool’’ licensed practical
nurses, housekeeping employees, registered
nurses, social workers, occupational therapists,
physical therapists, speech therapists, office cler-
ical and business office clerical employees, Med-
ical Directors, Nursing Supervisors, In-Service Di-
rectors, Rehabilitation Supervisors, Infection Con-
trol Nurses, Administrators, Assistant Administra-
tors, Bookkeeping Supervisors, Directors of Nurs-
ing, Plant Maintenance Directors, Dietary Direc-
tors, Recreation Directors, Purchasing Directors,
Admissions Directors, Medical Records Directors,
guards and supervisors as defined in the Act.
(b) Post at their facility in Brooklyn, New York,
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 29 after being signed by the
Respondents’ authorized representative, shall be posted
by the Respondents immediately upon receipt 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 Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
705FLATBUSH MANOR CARE CENTER
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1199 National
Health and Human Services Employees Union, as the
exclusive 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 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 bargaining unit:
All full-time and regular part-time employees em-
ployed by us at our Brooklyn, New York loca-
tions, including aides, recreational aides, orderlies,
dietary employees and licensed practical nurses,
excluding all ‘‘pool’’ licensed practical nurses,
housekeeping employees, registered nurses, social
workers, occupational therapists, physical thera-
pists, speech therapists, office clerical and busi-
ness office clerical employees, Medical Directors,
Nursing Supervisors, In-Service Directors, Reha-
bilitation Supervisors, Infection Control Nurses,
Administrators, Assistant Administrators, Book-
keeping Supervisors, Directors of Nursing, Plant
Maintenance Directors, Dietary Directors, Recre-
ation Directors, Purchasing Directors, Admissions
Directors, Medical Records Directors, guards and
supervisors as defined in the Act.
FLATBUSH MANOR CARE CENTER AND
FAIR MANAGEMENT CONSULTING CORP.