PruittHealth-Virginia Park, LLC

National Labor Relations Board - Board Decisions

Sep 22, 2016

364 NLRB No. 125 (N.L.R.B. 2016)

364 NLRB No. 125
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.
Pruitthealth-Virginia Park, LLC and Retail, Whole-
sale and Department Store Union/UFCW South-
east Council. Case 10–CA–173537
September 22, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by Retail, Whole-
sale and Department Store Union/UFCW Southeast
Council on April 8, 2016, and amended charges filed on
May 9 and 12, 2016, the General Counsel issued the
complaint on May 12, 2016, alleging that PruittHealth-
Virginia Park, LLC (the Respondent) has violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
recognize and bargain with the Union following the Un-
ion’s certification in Case 10–RC–156997. (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations of the com-
plaint, and asserting affirmative defenses.1
On June 24, 2016, the General Counsel filed a Motion
for Summary Judgment. On June 28, 2016, 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.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain,2 but con-
tests the validity of the Union's certification on the basis

1 The Respondent’s answer denies knowledge or information suffi-
cient to form a belief concerning the dates that the charges were filed or
served upon the Respondent. Copies of the charges and affidavit of
service of the charges are included in the documents supporting the
General Counsel’s motion, showing the dates as alleged, and the Re-
spondent has not challenged the authenticity of these documents.
2 The Respondent’s answer denies the allegations in complaint pars.
10 and 11. These paragraphs state, respectively, the legal conclusions
that the Respondent has been failing and refusing to bargain collective-
ly and in good faith with the exclusive collective-bargaining representa-
tive of its employees in violation of Sec. 8(a)(5) and (1) of the Act, and
that the unfair labor practices of the Respondent affect commerce with-
in the meaning of Sec. 2(6) and (7) of the Act. Elsewhere in the an-
swer, however, the Respondent admits its refusal to bargain and that it
is an employer engaged in commerce. Accordingly, the Respondent’s
of its objections in the underlying representation pro-
ceeding.
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 or 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).3 Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Atlanta,
Georgia (the Respondent’s facility) and has been en-
gaged in the business of operating a nursing home for the
care of the elderly.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $100,000 and purchased and received at the Respond-
ent’s facility goods valued in excess of $5000 from sup-
pliers located outside the State of Georgia.
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 a health care institution within the
meaning of Section 2(14) of the Act.
We further find 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 representation election held on August
20, 2015, the Union was certified on October 27, 2015,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit (the
unit):

denials with respect to the allegations in pars. 10 and 11 do not raise
any material issues of fact to be litigated in this proceeding.
3 Member Miscimarra agrees that summary judgment is appropriate
in this unfair labor practice case because the Respondent has not pre-
sented any new matters that were not previously resolved in the prior
representation case. Member Miscimarra did not participate in the prior
representation case, and does not reach or pass on the merits of the
Board’s decision in that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All full time and regular part time CNA’s, restorative
aides, activity assistants, medical record clerks, and
service and maintenance employees employed by the
Employer at its facility located at 1000 Briarcliff Road
N.E., Atlanta, GA, but excluding all RNs, LPNs,
charge nurses, confidential employees, professionals,
office clerical employees, guards and supervisors as de-
fined by the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About November 10, 2015, January 15 and February
17, 2016, the Union, by letter, requested that the Re-
spondent recognize it as the exclusive collective-
bargaining representative of the unit and bargain collec-
tively with the Union as the exclusive collective-
bargaining representative of the unit.4
Since about November 20, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since about November 20,
2015, to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in 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-

4 The Respondent’s answer admits that the Union requested that the
Respondent recognize and bargain with it as the exclusive representa-
tive of the unit, but denies that the Union requested to bargain by letter
on the dates identified in the complaint. Copies of the letters requesting
to bargain are included in the documents supporting the General Coun-
sel’s motion, showing the dates as alleged, and the Respondent has not
challenged the authenticity of these documents.
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, PruittHealth-Virginia Park, LLC, Atlanta,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Retail, Wholesale and Department Store Union/UFCW
Southeast Council as the exclusive collective-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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full time and regular part time CNA’s, restorative
aides, activity assistants, medical record clerks, and
service and maintenance employees employed by the
Employer at its facility located at 1000 Briarcliff Road
N.E., Atlanta, GA, but excluding all RNs, LPNs,
charge nurses, confidential employees, professionals,
office clerical employees, guards and supervisors as de-
fined by the Act.
(b) Within 14 days after service by the Region, post at
its facility in Atlanta, Georgia, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 10,
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. In addition to physical posting of paper
notices, notices shall be distributed electronically, such

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.”
PRUITTHEALTH-VIRGINIA PARK, LLC 3
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since November 20, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 10 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. September 22, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member
______________________________________
Lauren McFerran, 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 fail and refuse to recognize and bargain
with Retail, Wholesale and Department Store Un-
ion/UFCW Southeast Council as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
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 CNA’s, restorative
aides, activity assistants, medical record clerks, and
service and maintenance employees employed by us at
our facility located at 1000 Briarcliff Road N.E., Atlan-
ta, GA, but excluding all RNs, LPNs, charge nurses,
confidential employees, professionals, office clerical
employees, guards and supervisors as defined by the
Act.
PRUITTHEALTH-VIRGINIA PARK, LLC
The Board’s decision can be found at
www.nlrb.gov/case/10–CA–173537 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.