Lutheran Home at Moorestown

National Labor Relations Board - Board Decisions

Jun 22, 2001

334 N.L.R.B. 340 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
Lutheran Home at Moorestown and Communication
Workers of America, AFL–CIO. Case 4–CA–
30047
June 22, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
Pursuant to a charge filed on January 11, 2001, and an
amended charge filed on February 2, 2001, the Acting
General Counsel of the National Labor Relations Board
issued a complaint on February 2, 2001, alleging that the
Respondent has 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 4–RC–19855. (Official notice is taken of the “re-
cord” 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 deny-
ing in part the allegations in the complaint.
On March 5, 2001, the Acting General Counsel filed a
Motion for Summary Judgment. On March 6, 2001, 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
and an “Appeal from Action of the Regional Director
Denying Respondent’s Motion for Reconsideration and
Other Relief.” Counsel for the Acting General Counsel
filed a reply. Thereafter, the Respondent requested and
the Board granted leave to respond to the matters raised
by the Acting General Counsel’s reply. The Charging
Party has filed a statement in opposition to the position
of the Respondent.
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 admitted its refusal to
bargain, but asserted that the case should be held in
abeyance pending the Supreme Court’s decision in Ken-
tucky River Community Care v. NLRB, 193 F.3d 444 (6th
Cir. 1999), cert. granted 121 S.Ct. 27 (2000). Further, in
its response to the Board’s Notice to Show Cause, the
Respondent contends that the Regional Director lacked
authority to issue the complaint in this case because there
was “no General Counsel appointed by the President in a
manner that comports with requirements of the 29 U.S.C.
Sec. 153(d).”
The Respondent requested that we defer processing the
motion or deny it outright because, it asserts, the issue of
the supervisory status of registered nurses (RNs) and
licensed practical nurses (LPNs) is common to both this
case and Kentucky River, and the Supreme Court deci-
sion in Kentucky River will resolve the issue presented
here. Subsequent to the filing of the Respondent’s an-
swer and response to the Notice to Show Cause, the Su-
preme Court, on May 29, 2001, issued its decision in
Kentucky River.1 We find, however, that the court’s de-
cision does not warrant either denying the Acting Gen-
eral Counsel’s motion, or deferring the processing of the
motion pending further administrative proceedings.
The supervisory status of the Respondent’s RNs and
LPNs was litigated in the underlying representation case.
Indeed, it was litigated in both the preelection and the
postelection proceedings and on each occasion, the mat-
ter was resolved against the Respondent by findings that
the nurses involved were not supervisors. The Respon-
dent did not request Board consideration of those find-
ings either by filing a request for review of the Regional
Director’s Decision and Direction of Election or by filing
exceptions to the hearing officer’s report on objections to
the election. The Respondent, therefore, failed to ex-
haust its administrative remedies and, under Section
102.67(f) of the Board’s Rules and Regulations, is pre-
cluded from raising the issue directly by a motion for
reconsideration or indirectly by a request that we defer
processing the case.2 Accordingly, we deny Respon-
dent’s request as well as its appeal from the Regional
Director’s order denying the Respondent’s motion for
reconsideration.
The Respondent also contends that we should deny the
motion because the complaint issued at a time when
there was no properly appointed General Counsel. We
find no merit in the Respondent’s contention. The Act-
ing General Counsel was appointed pursuant to 5 U.S.C.
§3345(a), as amended by the Federal Vacancies Reform
Act of 1998, an “alternative procedure” for temporarily
occupying an office. S. Rep. No. 105–250, 105th Cong.,
2d Sess. 17 (1998). We do not believe it appropriate for
us to decide, in this unfair labor practice case, whether or
not the President of the United States made a proper ap-
pointment under that statute. In any event, we are not
persuaded, based on the Respondent’s arguments, that
the Acting General Counsel’s appointment was clearly
improper.3 We therefore reject the Respondent’s conten-

1 121 S.Ct. 1861 (2001).
2 See Dynacorp/Dynair Services, 322 NLRB 602 (1996). See also
Ritz-Carlton Hotel Co. v. NLRB, 123 F.3d 760 (3d. Cir. 1997), enfg.
321 NLRB 659 (1996).
3 In addition to defending the propriety of the appointment under
§3345, the Acting General Counsel argues that the Office of the Gen-
eral Counsel is afforded special protections under §3348 that insulate
complaints from any challenge based on alleged defects in his appoint-
ment. In view of our finding that the Respondent has failed to establish
334 NLRB No. 47
LUTHERAN HOME AT MOORESTOWN 341
tion that the Motion for Summary Judgment should be
denied on this ground. See U.S. v. Chemical Foundation,
Inc., 272 U.S. 1, 14–15 (1926) (presumption of regularity
supports the official acts of public officers in the absence
of clear evidence to the contrary).
Because all representation issues were or could have
been litigated in the prior representation proceeding and
the Respondent does not offer to adduce at a hearing any
newly discovered and previously unavailable evidence,
we find that the Respondent has not raised any represen-
tation issue that is properly litigable in this unfair labor
practice proceeding.4 See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant
the Motion for Summary Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation, has been engaged in the operation of a nurs-
ing home at its facility in Moorestown, New Jersey.
During the calendar year immediately preceding issuance
of the complaint, the Respondent, in conducting its nor-
mal business operations, received gross revenues in ex-
cess of $100,000, and purchased and received at its New
Jersey facility goods valued in excess of $5,000 directly
from points outside the State of New Jersey. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) 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 April 28, 2000, the Union
was certified on October 19, 2000, as the exclusive col-

that the appointment was clearly defective under §3345, we find it
unnecessary to address this additional argument.
Chairman Hurtgen does not agree that the Respondent must show
that the appointment was “clearly improper.” It is sufficient to show
that it was improper. However, Chairman Hurtgen agrees that this
showing has not been made.
4 We also reject the Respondent’s contention that the Supreme
Court’s grant of certiorari is a “special circumstance” warranting denial
of the motion here.
5 The Respondent also denied pars. 6 and 7 of the complaint, which
allege that since January 3, 2001, the Respondent has refused to recog-
nize and bargain with the Union. However, it is clear from its answer
and from its position as set forth above that its denial of these com-
plaint allegations is premised on its view that it is under no legal obli-
gation to bargain with the Union because the Supreme Court’s decision
in Kentucky River might invalidate the certification. We find that the
Respondent’s denial raises no material issues of fact warranting a hear-
ing.

lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time Registered Nurses
(RNs) and Licensed Practical Nurses (LPNs) employed
by the Respondent at its 255 East Main Street, Moores-
town, N.J. facility, excluding all other employees, the
Administrator, Assistant Administrator, the Director of
Nursing, the Assistant Director of Nursing, MDS Co-
ordinator, Unit Managers, RN Supervisors, Certified
Nursing Assistants, Nursing Assistants, guards and su-
pervisors 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 3, 2001, the Respondent has refused to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit. 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 3, 2001, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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, Lutheran Home at Moorestown, Moores-
town, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
(a) Refusing to bargain with the Communications
Workers of America, AFL–CIO, as the exclusive bar-
gaining 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 Registered Nurses
(RNs) and Licensed Practical Nurses (LPNs) employed
by the Respondent at its 255 East Main Street, Moores-
town, N.J. facility, excluding all other employees, the
Administrator, Assistant Administrator, the Director of
Nursing, the Assistant Director of Nursing, MDS Co-
ordinator, Unit Managers, RN Supervisors, Certified
Nursing Assistants, Nursing Assistants, guards and su-
pervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Moorestown, New Jersey, copies of the
attached notice marked “Appendix.”6 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-

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.”
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 January 3,
2001.
(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.
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 the Communi-
cations Workers of America, 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 bar-
gaining unit:

All full-time and regular part-time Registered Nurses
(RNs) and Licensed Practical Nurses (LPNs) employed
by us at our 255 East Main Street, Moorestown, N.J.
facility, excluding all other employees, the Administra-
tor, Assistant Administrator, the Director of Nursing,
the Assistant Director of Nursing, MDS Coordinator,
Unit Managers, RN Supervisors, Certified Nursing As-
sistants, Nursing Assistants, guards and supervisors as
defined in the Act.
LUTHERAN HOME AT MOORESTOWN