Lake Mary Health & Rehabilitation

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 103 (N.L.R.B. 2006)

346 NLRB No. 103
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.
Lake Mary Health Care Associates, LLC d/b/a Lake
Mary Health and Rehabilitation and Service
Employees International Union, Florida Health-
care Union, Local 1999.1 Case 12–CA–24810
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on January 12, 2006,2 the
General Counsel issued the complaint on January 25,
2006, alleging that the Respondent has violated Section
8(a)(1) and (5) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
12–RD–978. (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 Respondent
filed an answer admitting in part and denying in part the
allegations in the complaint, and asserting an affirmative
defense.
On February 17, 2006, the General Counsel filed a
Motion for Summary Judgment. On February 22, 2006,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted.3 The Respondent filed a response
and a cross-motion for summary judgment.
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 on the
ground that the Board erred in setting aside the initial

1 The name of the Union reflects the merger of Service Employees
International Union, Local 1199 into Service Employees International
Union, Florida Healthcare Union, Local 1999. This name was on the
Notice of Election and ballots in the election in which the Union was
certified.
2 Although the Respondent states in its answer to the complaint that
it is without knowledge as to when a copy of the charge was served, it
is clear from the exhibits attached to the General Counsel’s motion that
the charge was filed and served as alleged. The Respondent has not
challenged the authenticity of those exhibits.
3 On February 27, 2006, the General Counsel filed a correction to his
Motion for Summary Judgment.
election, based on the Union’s objection, and directing a
second election.4
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). Accord-
ingly, we grant the General Counsel’s Motion for Sum-
mary Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corpo-
ration with its principal office and place of business lo-
cated in Lake Mary, Florida, has been engaged in the
operation of a nursing home. During the 12-month pe-
riod preceding issuance of the complaint, the Respon-
dent, in the course and conduct of its business operations
described above, derived gross revenues in excess of
$100,000, and purchased and received at its Lake Mary,
Florida facility goods valued in excess of $50,000 di-
rectly from points located outside the State of Florida.
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 Service Employees International
Union, Florida Healthcare Union, Local 1999 (the Un-
ion) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the second election held October 28, 2005,
the Union was certified on November 10, 2005, as the

4 The Board’s decision setting aside the initial election and ordering
a rerun election is reported at 345 NLRB No. 37 (2005).
5 The Respondent’s cross motion for summary judgment is therefore
denied.
Member Schaumber dissented from the ordering of a second election
in the underlying representation case and would have found that the
Respondent did not engage in objectionable conduct warranting a new
election. 345 NLRB No. 37, slip op. at 4-6. While he remains of that
view, he agrees that the Respondent has not presented any new matters
that are properly litigable in this unfair labor practice case. See Pitts-
burgh Plate Glass Co. v. NLRB, supra. In light of this, and for institu-
tional reasons, Member Schaumber agrees with the decision to grant
the General Counsel’s Motion for Summary Judgment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time certified nursing as-
sistants, non-certified nursing assistants, dietary em-
ployees, cooks, housekeeping employees, laundry em-
ployees, and floor techs employed by the Employer at
its Lake Mary, Florida facility; excluding: all other em-
ployees, office clerical employees, confidential em-
ployees, professional employees, technical employees,
Licensed Practical Nurses, Registered Nurses, 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 November 17 and December 1, 2005, the
Union, by letters, requested that the Respondent recog-
nize and bargain collectively with it as the exclusive col-
lective-bargaining representative of the certified unit.
Since about November 22, 2005, the Respondent has
failed and refused to recognize and bargain with the Un-
ion.
CONCLUSION OF LAW
By failing and refusing since November 22, 2005, 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)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) 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-
cation 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, Lake Mary Health Care Associates, LLC
d/b/a Lake Mary Health and Rehabilitation, Lake Mary,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Service Employees Inter-
national Union, Florida Healthcare Union, Local 1999, 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time certified nursing as-
sistants, non-certified nursing assistants, dietary em-
ployees, cooks, housekeeping employees, laundry em-
ployees, and floor techs employed by the Respondent
at its Lake Mary, Florida facility; excluding: all other
employees, office clerical employees, confidential em-
ployees, professional employees, technical employees,
Licensed Practical Nurses, Registered Nurses, guards
and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Lake Mary, Florida, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 12,
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. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 22, 2005.
(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.

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 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.”
LAKE MARY HEALTH & REHABILITATION 3
Dated, Washington, D.C. April 28, 2006
Robert J. Battista, Chairman
Wilma B. Liebman, Member
Peter C. Schaumber, 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 refuse to bargain with Service Employ-
ees International Union, Florida Healthcare Union, Local
1999, as the exclusive bargaining 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 fol-
lowing bargaining unit:
All full-time and regular part-time certified nursing as-
sistants, non-certified nursing assistants, dietary em-
ployees, cooks, housekeeping employees, laundry em-
ployees, and floor techs employed by us at our Lake
Mary, Florida facility; excluding: all other employees,
office clerical employees, confidential employees, pro-
fessional employees, technical employees, Licensed
Practical Nurses, Registered Nurses, guards and super-
visors as defined in the Act.
LAKE MARY HEALTH CARE ASSOCIATES, LLC
D/B/A LAKE MARY HEALTH AND
REHABILITATION