New York Center for Rehabilitation Care

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 1243 (N.L.R.B. 2005)

NEW YORK CENTER FOR REHABILITATION CARE
344 NLRB No. 148
1243
New York Rehabilitation Care Management, LLC,
d/b/a New York Center for Rehabilitation Care
and New York Center for Rehabilitation Care,
Inc., d/b/a New York Center for Rehabilitation
Care and 1199, New York’s Health and Human
Service Employees Union, Service Employees
International Union, AFL–CIO. Case 29–CA–
26678
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
Pursuant to a charge and an amended charge filed by
the Union on December 13, 2004, and January 27, 2005,
respectively, the General Counsel of the National Labor
Relations Board issued a complaint on January 27, 2005,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 29–RC–
9937. (Official notice is taken of the “record” in the rep-
resentation 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 allega-
tions in the complaint, and also asserting an affirmative
defense.
On March 10, 2005, the General Counsel filed a peti-
tion to partially strike Respondent’s answer and a Motion
for Summary Judgment. Thereafter, on March 15, 2005,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On April 15, 2005, the Respon-
dent filed an opposition to the motion for summary
judgment.1
Ruling on Motion for Summary Judgment
The complaint alleges that on September 3, 2004,2 fol-
lowing an election in which a majority of unit employees
selected the Union as their collective-bargaining repre-
sentative, the Union requested that the Respondent bar-
gain collectively with it, and that since that date the Re-

1 On April 25, 2005, the General Counsel filed a motion to reject the
Respondent’s opposition to the motion for summary judgment. In its
motion, the General Counsel contends that the Respondent’s opposition
should be rejected because it was improperly served on the parties.
We find it unnecessary to pass on the General Counsel’s motion. In
finding that summary judgment is warranted in this case, we have as-
sumed arguendo that the opposition was timely filed, and we have duly
considered the arguments contained in the Respondent’s filing. Thus,
any ruling on the General Counsel’s motion to reject would have no
bearing on the outcome of this case.
2 All dates hereafter are in 2004, unless otherwise stated.
spondent has failed and refused to do so. In its answer,
the Respondent admits all of the factual allegations in the
complaint, except that it denies that the Union is the em-
ployees’ exclusive bargaining representative, and it as-
serts the “statute of limitations” as an affirmative de-
fense.3 With respect to its denial of the allegation that
the Union is the exclusive bargaining representative of
the unit employees, the Respondent asserts that the Un-
ion’s certification is invalid and, in support, raises argu-
ments that were addressed by the Board in the underlying
representation proceeding. With respect to its affirma-
tive defense, the Respondent contends, in its opposition
to summary judgment, that the charges filed in December
are barred by Section 10(b) of the Act because the Re-
spondent had advised the Union in May that it would test
the Union’s certification.
In agreement with the General Counsel, we find that
neither the Respondent’s raising of representation case
issues, nor its assertion of a 10(b) defense, present fac-
tual issues warranting a hearing in this matter. With re-
spect to the representation case issues, all such issues
raised by the Respondent were or could have been liti-
gated in the prior representation proceeding. The Re-
spondent does not offer to adduce at a hearing any newly
discovered and previously unavailable evidence, nor
does it allege any special circumstances that would re-
quire the Board to reexamine the decision made in the
representation proceeding.4 We therefore find that the
Respondent has not raised any representation issue that is

3 The Respondent additionally denies the allegation, contained in
par. 2 of the complaint, that it is a domestic corporation with its princi-
pal office and place of business in Astoria, New York. The General
Counsel has moved to strike this answer, noting that in the underlying
representation proceeding the Respondent entered into a stipulated
election agreement stating that it was a New York corporation located
at the same Astoria, New York address that is set forth in the com-
plaint. The General Counsel further notes in support that all of the
documents delivered to the Respondent in this proceeding were re-
ceived by the Respondent at the Astoria, New York address, and that
the Respondent’s answer to the complaint admits that it is an employer
engaged in commerce within the meaning of the Act. We deny the
General Counsel’s motion to strike, but find that, in view of the above
facts, the Respondent’s answer to par. 2 of the complaint raises no issue
warranting a hearing.
4 We note that, on June 3, 2005, the Respondent submitted to the
Board a May 13, 2005 decision of the United States District Court,
Eastern District of New York that (a) denies motions for summary
judgment in a WARN Act proceeding involving the Union and Lyden
Care Center (which was found in the underlying representation pro-
ceeding to be a single employer with the Respondent); and (b) upholds
an arbitrator’s decision finding that Lyden Care Center violated a col-
lective-bargaining agreement by refusing to provide certain employees
with severance pay. We find no merit to the Respondent’s contention
that the court’s decision precludes summary judgment in the instant
matter, as the issues presented in that case do not raise any new mate-
rial issues of fact relevant to the instant unfair labor practice allega-
tions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1244
properly litigable in this unfair labor practice proceeding.
See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941).
With respect to the Respondent’s contention that the
refusal to bargain allegation is beyond the 10(b) period,
we find that this too does not raise an issue of material
fact in this proceeding. The Respondent does not con-
tend that the charge was filed more than 6 months after
the Respondent’s September 3 refusal to bargain.
Rather, the Respondent contends that the charge is be-
yond the 10(b) period because it was filed more than 6
months after a May 2004 assertion by the Respondent to
the Union that the Respondent would test certification.
In the underlying representation proceeding, however,
the Respondent filed objections to the March 11 election,
the Regional Director issued a decision on May 20 over-
ruling the objections and a certification of representative,
and on August 19 the Board denied the Respondent’s
requests for review of the Regional Director’s decision
and certification. Thus, assuming the Respondent did, in
fact, inform the Union in May of its intention to test the
certification, this action would not have commenced the
10(b) period. Indeed, the 10(b) period could not start
running prior to the Board’s denial of the request for re-
view on August 19, inasmuch as any charge alleging a
refusal to bargain before the Board ruled on the request
for review would not have been considered by the Board.
Thus, the 10(b) period commenced on September 3, after
the Board’s denial of the request for review, when the
Respondent refused the Union’s request to bargain.
Consequently, both the Union’s December 13 charge and
its January 27, 2005 amended charge were timely filed.
Accordingly, we shall grant the General Counsel’s
Motion for Summary Judgment and shall order the Re-
spondent to bargain with the Union.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration with an office and place of business located at
2613 21st Street, Astoria, New York, has been engaged
in providing health care and related services. Annually,
the Respondent, in the course and conduct of its business
operations, derives gross revenues valued in excess of
$100,000, and purchases and receives at its Astoria facil-
ity, goods and materials valued in excess of $5000 from
suppliers located within the State of New York, which
suppliers, in turn, purchase and receive said goods and
materials directly from suppliers located outside the State
of New York. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and that 1199, New
York’s Health and Human Service Employees Union,
Service Employees International Union, AFL–CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following an election held March 11, 2004, the Union
was certified on May 20, 2004, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time certified nurses
aides, housekeepers, maintenance employees, dietary
employees and recreational employees employed by
Respondent at its facility located at 2613 21st Street,
Astoria, New York, excluding all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in Section 2(11) of the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On September 3, 2004, the Union requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of the unit, and since
that date, the Respondent has failed and refused to do so.
We find that this failure and refusal constitutes an unlaw-
ful refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By refusing on and after September 3, 2004, 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 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.,
NEW YORK CENTER FOR REHABILITATION CARE 1245
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, New York Rehabilitation Care Manage-
ment, LLC, d/b/a New York Center for Rehabilitation
Care, and New York Center for Rehabilitation Care, Inc.,
d/b/a New York Center for Rehabilitation Care, Astoria,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with 1199, New York’s Health
and Human Service Employees Union, Service Employ-
ees International Union, AFL–CIO as the exclusive rep-
resentative 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 nurses
aides, housekeepers, maintenance employees, dietary
employees and recreational employees employed by
Respondent at its facility located at 2613 21st Street,
Astoria, New York, excluding all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in Section 2(11) of the Act.
(b) Within 14 days after service by the Region, post at
its facility in Astoria, New York, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 29,
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-

5 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.”
plicate and mail, at its own expense, a copy of the notice
to all current and former employees employed by the
Respondent at any time since September 3, 2004.
(b) 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
violated 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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to bargain with 1199, New York’s
Health and Human Service Employees Union, Service
Employees International Union, AFL–CIO as the exclu-
sive 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 nurses
aides, housekeepers, maintenance employees, dietary
employees and recreational employees employed by
Respondent at its facility located at 2613 21st Street,
Astoria, New York, excluding all office clerical em-
ployees, professional employees, guards and supervi-
sors as defined in Section 2(11) of the Act.
NEW YORK CENTER FOR REHABILITATION CARE
AND NEW YORK CENTER FOR REHABILITATION
CARE, INC., D/B/A NEW YORK CENTER FOR
REHABILITTION CARE