Waverly-Cedar Falls Health Care Center, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 997 (N.L.R.B. 1990)

WAVERLY-CEDAR FALLS HEALTH CENTER 997
Waverly-Cedar Falls Health Care Center , Inc. and
Chauffeurs , Teamsters &Rz Helpers , Local Union
No. 238 , a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO. Case 18-CA-
11238
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 6, 1990, the General Counsel of the
National Labor Relations Board issued a complaint
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 follow-
ing the Union's certification in Case 18-RC-14443.
(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 Re-
spondent filed an answer admitting in part and de-
nying in part the allegations in the complaint.
On May 17, 1990, the General Counsel filed a
Motion for Summary Judgment with the Board.
On May 21, 1990, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted. On June 18, 1990, the Respondent filed a
response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to
Show Cause the Respondent admits its refusal to
bargain, but attacks the validity of the certification
on the basis of the Board's determination in the
representation proceeding that the seven licensed
practical nurses (LPN's) employed as charge nurses
in the unit were not supervisory or managerial em-
ployees.
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding. The Respondent does
not offer to adduce at a hearing any newly discov-
ered 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.' We therefore find
' The only previously unavailable evidence cited by the Respondent in
its response to the Notice to Show Cause is a series of Medicare and
Medicaid-reimbursement regulations that were published by the U S De-
partment of Health and Human Service, (HHS) shortly after the Novem-
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac-
cordingly, we grant the Motion for Summary
Judgment.
On the entire record, the Board makes the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a Mississippi corporation with
a facility in Cedar Falls, Iowa, is engaged in the
business of operating a nursing home. During the
calendar year preceding issuance of the complaint,
the Respondent derived gross revenues in excess of
$100,000 and purchased and received at its Cedar
Falls, Iowa facility products, goods, and materials
valued in excess of $50,000 directly from outside
the State of Iowa. 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 organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
'A. The Certification
Following the election held January 5, 1990, the
Union was certified on January 12, 1990, as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All licensed practical nurses employed at the
Respondent's Cedar Falls, Iowa facility; ex-
ber 22, 1988 representation hearing The Respondent specifically cites
§ 483 28(b) of these rules, 54 FR 5316, 5366 (Feb. 2, 1989), which states
as follows.
(b) Level B requirement: Charge nurse A registered nurse, or a
qualified licensed practical (vocational) nurse, is designated as charge
nurse by the director of nursing services for each tour of duty, and is
responsible for supervision of the total nursing activities in the facili-
ty during each tour of duty The director of nursing, services does
not serve as charge nurse in an facility with an average daily total
occupancy of 60 or more patients The charge nurse delegates re-
sponsibility to nursing personnel for the direct nursing care of specif-
ic patients during each tour of duty, on the basis of staff qualifica-
tions, size and physical layout of the facility, characteristics of the
patient load, and the emotional, social, and nursing care needs of pa-
tients
We find that these regulations, by themselves, do not require reexamina-
tion of our original decision that the seven LPN/charge nurses are not
2(11) supervisors. First, it is not at all clear from the face of the regula-
tions that they would actually require that one or more of the
LPN/charge nurses have 2(11) supervisory authority Second, even if the
regulations did contain such a requirement, the Respondent has not con-
tended or presented any evidence that the LPN/charge nurses' duties or
responsibilities have actually been changed since the hearing to comply
therewith In short, it is the LPN/charge nurses' actual duties and re-
sponsibilities that determine 2(11) supervisory authority, not whether the
absence of such authority would render the Respondent out of compli-
ance with HHS regulations.
298 NLRB No. 151
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cluding office clerical employees, professional
employees , guards and supervisors as defined
in the Act, and all other employees.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since about January 29 , 1990, the Union has re-
quested the Respondent to bargain and, since about
February 8, 1990 , the Respondent has refused. 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 February 8, 1990, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in
unfair labor practices affecting 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 ini-
tial period of the certification 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 , Waverly-Cedar Falls Health Care
Center, Inc., Cedar Falls, Iowa, its officers , agents,
successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Chauffeurs, Team-
sters & Helpers, Local Union No. 238, a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO as the exclusive bargaining representative of
the employees in the bargaining unit.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request , bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment , and, if an understanding is reached,
embody the understanding in a signed agreement:
All licensed practical nurses employed by the
Respondent at its Cedar Falls, Iowa facility;
excluding office clerical employees , profession-
al employees, guards and supervisors as de-
fined in the Act, and all other employees.
(b) Post at its facility in Cedar Falls, Iowa,
copies of the attached notice marked "Appendix."2
Copies of the notice , on forms provided by the Re-
gional Director for Region 18, after being signed
by the Respondent 's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Nation-
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED Bl' 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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Chauffeurs,
Teamsters & Helpers, Local Union No. 238, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers 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 exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WAVERLY-CEDAR FALLS HEALTH CENTER 999
WE WILL, on request, bargain with the Union clerical employees, professional employees,
and put in writing and sign any agreement reached guards and supervisors as defined in the Act,
on terms and conditions of employment for our and all other employees.
employees in the bargaining; unit:
All licensed practical nurses employed at our
WAVERLY-CEDAR FALLS HEALTH
Cedar Falls, Iowa facility; excluding all office
CARE CENTER, INC.