King Manor Care Center

National Labor Relations Board - Board Decisions

Sep 21, 1992

308 N.L.R.B. 900 (N.L.R.B. 1992)

900
308 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 17, 1988, the Regional Director issued a Decision,
Order, and Direction of Election in which, inter alia, he approved
the stipulation of the parties that King Manor Care Center and
Health Care Services Group, Inc. were joint employers and directed
an election to determine whether the employees would be rep-
resented by Nursing Home and Hospital Employees Union, a Divi-
sion of 1115 Joint Board or Local 6, International Federation of
Health Professionals, the Intervenor, or neither. On January 12,
1989, the Regional Director issued a supplemental order reopening
the record and a notice of hearing. Thereafter, on February 9, 1990,
the Regional Director issued a Supplemental Decision and Direction
of Election.
The Respondent and Intervenor filed requests for review which
were denied by an evenly divided Board on August 24, 1990. There-
after, the Respondent and Intervenor filed requests for reconsider-
ation which were denied by the Board on May 22, 1991 (303 NLRB
19). On August 27 and 28, 1991, the Respondent and Intervenor, re-
spectively, filed objections to conduct affecting the results of the
election. On December 30, 1991, the Regional Director issued a Sec-
ond Supplemental Decision and Certification of Representative. On
January 23 and 28, 1991, the Respondent and Intevenor, respec-
tively, filed requests for review of the Regional Director’s deter-
mination which were denied by the Board on March 20, 1992.
King Manor Care Center and Health Care Services
Group, Inc. and 1115 Nursing Home and Hos-
pital Employees Union, a Division of 1115 Joint
Board. Case 22–CA–18485
September 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On June 16, 1992, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 22–RC–
9913. (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 Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On July 31, 1992, the General Counsel filed a Mo-
tion for Summary Judgment and Memorandum in Sup-
port. On August 4, 1992, 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
bargain but attacks the validity of the certification on
the basis of the Board’s unit determination in the rep-
resentation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is 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 Judg-
ment. On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, King Manor Care Center and
Health Care Services Group, Inc., a New Jersey cor-
poration, at its facility in Neptune, New Jersey, has
been engaged in the operation of a nursing home pro-
viding inpatient care. During the 12 months preceding
issuance of the complaint, the Respondent derived
gross revenues in excess of $100,000 and during the
same period, in conducting its operations, purchased
products, goods, and materials valued in excess of
$5000 directly from points outside the State of New
Jersey. We find that the Respondent has been engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and has been a health care institu-
tion within the meaning of Section 2(14) of the Act
and 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 election held March 9, 1990,1 the
Union was certified on December 30, 1991, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time service and
maintenance employees, including nurses aides,
dietary aides, housekeeping employees and laun-
dry employees employed by Respondent at its
Neptune, New Jersey facility, excluding recreation
aides, office clerical employees, technical employ-
901KING MANOR CARE CENTER
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
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.’’
ees, professional employees, guards, cooks and all
other 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 January 22, 1992, the Union has requested the
Respondent to bargain and, since January 22, 1992, in-
cluding May 18, 1992, the Respondent has 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 January 22, 1992, including
May 18, 1992, to bargain with the Union as the exclu-
sive collective-bargaining representative of 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 Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification 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, King Manor Care Center and Health Care
Center Services Group, Inc., Neptune, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1115 Nursing Home
and Hospital Employees Union, a Division of 1115
Joint Board, as the exclusive 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 service and
maintenance employees, including nurses aides,
dietary aides, housekeeping employees and laun-
dry employees employed by Respondent at its
Neptune, New Jersey facility, excluding recreation
aides, office clerical employees, technical employ-
ees, professional employees, guards, cooks and all
other supervisors as defined in the Act.
(b) Post at its facility in Neptune, New Jersey, cop-
ies of the attached notice marked ‘‘Appendix.’’2 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 22 after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER DEVANEY, dissenting.
In the underlying representation proceeding, I would
have granted the Respondent’s and Intervenor’s re-
quests for review, which were denied by an evenly di-
vided Board on August 24, 1990. I dissented at 303
NLRB 19 from the denial of the Respondent’s motion
for reconsideration on May 22, 1991. I later dissented
from the denial of the Respondent’s and Intervenor’s
requests from review of the Regional Director’s certifi-
cation of representative on March 20, 1992. Accord-
ingly, I dissent from my colleagues’ finding an 8(a)(5)
violation here. Instead, for the reasons set out in my
dissent at 303 NLRB 19, supra, I would find that the
recognition agreement between the Respondent and In-
tervenor should bar the Union’s petition for an election
for a reasonable period of time. Accordingly, I would
find no 8(a)(5) violation in the Respondent’s refusal to
bargain with the Union.
902 DECISIONS OF THE 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1115 Nursing
Home and Hospital Employees Union, a Division of
1115 Joint Board 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 bargaining unit:
All full-time and regular part-time service and
maintenance employees, including nurses aides,
dietary aides, housekeeping employees and laun-
dry employees employed at our Neptune, New
Jersey facility, excluding recreation aides, office
clerical employees, technical employees, profes-
sional employees, guards, cooks and all other su-
pervisors as defined in the Act.
KING MANOR CARE CENTER AND
HEALTH CARE SERVICES GROUP, INC.