Laurel Rose

National Labor Relations Board - Board Decisions

Apr 30, 1997

323 N.L.R.B. 97 (N.L.R.B. 1997)

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NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Convalescent Center of Norwich, Inc., d/b/a Laurel
Rose and New England Health Care Employees
Union, District 1199, AFL–CIO. Case 34–CA–
7762
April 30, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HIGGINS
Pursuant to a charge filed on February 3, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint on February 26, 1997, alleg­
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus­
ing the Union’s request to bargain following the
Union’s certification in Case 34–RC–1365. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu­
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an­
swer admitting in part and denying in part the allega­
tions in the complaint.
On March 24, 1997, the General Counsel filed a
Motion for Summary Judgment. On March 26, 1997,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo­
tion should not be granted. The Respondent did not
file a response.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits that the Union
was certified as the exclusive collective-bargaining rep­
resentative of the unit, and that the Union requested
bargaining, but denies that the unit is appropriate, that
the Union is the exclusive bargaining representative of
the unit, and that the Respondent has refused to bar-
gain with the Union as the collective-bargaining rep­
resentative of the allegedly appropriate unit.
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).
Nor do we find that the Respondent’s denial that it
has failed and refused to bargain with the exclusive-
bargaining representative of the appropriate unit raises
any issue warranting a hearing in this proceeding. The
Respondent admits that about January 22, 1997, the
Union, by letter, requested the Respondent to bargain
and the Respondent does not contend that it has of­
fered or agreed to meet and bargain with the Union
since that request. Rather, it is clear from the other de­
nials in the Respondent’s answer that the Respondent
is in fact refusing to bargain with the Union in order
to test the Union’s certification.
Accordingly, we grant the Motion for Summary
Judgment.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation
with an office and place of business in Norwich, Con­
necticut, has been engaged in the operation of a nurs­
ing home. During the 12-month period ending January
31, 1997, the Respondent, in conducting its operations
described above, derived gross revenues in excess of
$100,000 and purchased and received at its Norwich,
Connecticut facility goods valued in excess of $50,000
directly from points outside the State of Connecticut.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza­
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held December 15, 1995, the
Union was certified on January 17, 1997, as the exclu­
sive collective-bargaining representative of the employ­
ees in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees employed by the Em­
ployer including licensed practical nurses, thera­
peutic recreation directors, physical therapy aides,
certified/registered nursing assistants, house-
keeping employees, laundry employees, dietary
employees, and porters; but excluding the admin­
istrator, the director of nursing, the assistant direc­
tor of nursing, the infection control in-service co­
ordinator, the minimum data set coordinator, reg­
istered nurses, the food service director, the thera­
peutic recreation department director, the mainte­
nance director, the housekeeping/laundry director,
the social service director, the admissions/market-
1 Member Higgins did not participate in the underlying representa­
tion case. However, he agrees that the Respondent has not raised
anything with respect to that case that is properly litigable before the
Board in this test-of-certification case.
323 NLRB No. 97
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing director, the business office manager, cooks,
business office clerical employees, and guards,
professional employees and 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, 1997, the Union has requested the
Respondent to bargain and, since the same date, the
Respondent has refused. We find that this refusal con­
stitutes 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, 1997, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices affecting commerce within the meaning of Sec­
tion 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 the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent 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, Convalescent Center of Norwich, Inc.,
d/b/a Laurel Rose, Norwich, Connecticut, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with New England Health
Care Employees Union, District 1199, AFL–CIO as
the exclusive bargaining representative of the employ­
ees 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 employed by the Em­
ployer including licensed practical nurses, thera­
peutic recreation directors, physical therapy aides,
certified/registered nursing assistants, house-
keeping employees, laundry employees, dietary
employees, and porters; but excluding the admin­
istrator, the director of nursing, the assistant direc­
tor of nursing, the infection control in-service co­
ordinator, the minimum data set coordinator, reg­
istered nurses, the food service director, the thera­
peutic recreation department director, the mainte­
nance director, the housekeeping/laundry director,
the social service director, the admissions/market­
ing director, the business office manager, cooks,
business office clerical employees, and guards,
professional employees and other supervisors as
defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Norwich, Connecticut, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 34 after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 no­
tices are not altered, 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 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 former employees employed by the Re­
spondent at any time since February 3, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
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.’’
LAUREL ROSE 3
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 30, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., 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 the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with New England
Health Care Employees Union, District 1199, AFL–
CIO 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 employed by us at our
Norwich, Connecticut facility, including licensed
practical nurses, therapeutic recreation directors,
physical therapy aides, certified/registered nursing
assistants, housekeeping employees, laundry em­
ployees, dietary employees, and porters; but ex­
cluding the administrator, the director of nursing,
the assistant director of nursing, the infection con­
trol in-service coordinator, the minimum data set
coordinator, registered nurses, the food service di­
rector, the therapeutic recreation department direc­
tor, the maintenance director, the housekeeping/
laundry director, the social service director, the
admissions/marketing director, the business office
manager, cooks, business office clerical employ­
ees, and guards, professional employees and other
supervisors as defined in the Act.
CONVALESCENT CENTER OF NORWICH,
INC., D/B/A LAUREL ROSE