Attleboro Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

May 18, 1998

325 N.L.R.B. 146 (N.L.R.B. 1998)

1
325 NLRB No. 146
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.
Attleboro Associates, Ltd. and Attleboro, Inc., Indi-
vidually and as Partners d/b/a Attleboro Nurs-
ing & Rehabilitation Center and Teamsters
Local Union No. 628, International Brother-
hood of Teamsters, AFL–CIO. Case 4–CA–
26930
May 18, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Pursuant to a charge filed on March 10, 1998, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
March 12, 1998, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 4–RC–
19272. (Official notice is taken of the ‘‘record’’ 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 Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On April 6, 1998, the Acting General Counsel filed
a Motion for Summary Judgment and Memorandum in
Support. On April 8, 1998, 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.
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 admits its refusal to
bargain, but attacks the validity of the certification on
the basis of its contentions that its LPN charge nurses
are statutory supervisors as defined by the National
Labor Relations Act and, therefore, cannot comprise an
appropriate bargaining 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).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a
Pennsylvania limited partnership composed of Attle-
boro Associates, Ltd. (AAL) and Attleboro, Inc. (AI),
a Pennsylvania corporation and its general partner, and
has been engaged in the operation of a nursing home
in Langhorne, Pennsylvania (herein called the Home).
During calendar year 1997, the Respondent, in con-
ducting its business operations, derived gross revenues
in excess of $100,000 and purchased and received at
the Home goods and services valued in excess of
$50,000 directly from points outside the Common-
wealth of Pennsylvania.
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 has been a health care institu-
tion within the meaning of Section 2(14) 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 January 30, 1998, the
Union was certified on February 10, 1998, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time Licensed Prac-
tical Nurses employed at the Home, excluding all
other employees, Registered Nurses, professional
employees, guards and 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
On or about February 11, 1998, the Union, by letter,
requested that the Respondent recognize and bargain,
and, since February 27, 1998, the Respondent has
failed and 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 27, 1998, to rec-
ognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in
the appropriate unit, the Respondent has engaged in
unfair labor practices affecting commerce within the
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.’’
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 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, Attleboro Associates, Ltd. and Attleboro,
Inc., Individually and as Partners d/b/a Attleboro Nurs-
ing & Rehabilitation Center, Langhorne, Pennsylvania,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
No. 628, International Brotherhood of Teamsters,
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 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 Licensed Prac-
tical Nurses employed at the Home, excluding all
other employees, Registered Nurses, professional
employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post
at its facility in Langhorne, Pennsylvania, copies of the
attached notice marked ‘‘Appendix.’’1 Copies of the
notice, on forms provided by the Regional Director for
Region 4 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 27, 1998.
(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
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 18, 1998
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from my colleagues’ denial of the Employer’s
request for review of the Regional Director’s decision
in which she found that the Employer’s LPN charge
nurses were not supervisors within the meaning of the
Act. Accordingly, I dissent from my colleagues’ grant-
ing the Acting General Counsel’s Motion for Summary
Judgment and their finding that the Employer violated
Section 8(a)(5) and (1) of the Act in this certification-
testing proceeding.
Dated, Washington, D.C. May 18, 1998
llllllllllllllllll
J. Robert Brame III, Member
NATIONAL LABOR RELATIONS BOARD
3ATTLEBORO NURSING & REHABILITATION CENTER
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 Teamsters
Local Union No. 628, International Brotherhood of
Teamsters, 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 Licensed Prac-
tical Nurses employed by us, excluding all other
employees, Registered Nurses, professional em-
ployees, guards and supervisors as defined in the
Act.
ATTLEBORO ASSOCIATES, LTD. AND AT-
TLEBORO, INC., INDIVIDUALLY AND AS
PARTNERS D/B/A ATTLEBORO NURSING
& REHABILITATION CENTER