Audubon Health Care Center

National Labor Relations Board - Board Decisions

Apr 25, 1997

323 N.L.R.B. 85 (N.L.R.B. 1997)

1
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.
Grancare, Inc. d/b/a Audubon Health Care Center
and United Food & Commercial Workers
Union, Local 1444 Chartered by the UFCW
International Union, AFL–CIO, CLC. Case 30–
CA–13663
April 25, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on January 31, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint and an amendment to com­
plaint on February 21 and March 11, 1997, respec­
tively, alleging that the Respondent has violated Sec­
tion 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 Cases 30–RC–5576 and
30–RC–5577. (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 Respondent filed an answer admitting in part and
denying in part the allegations in the amended com­
plaint and asserting affirmative defenses.
On March 28, 1997, the General Counsel filed a
Motion for Summary Judgment. On April 1, 1997, 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, 1997, the Re­
spondent filed a response.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
failure to respond to the Union’s requests to bargain,
but attacks the validity of the certification on the basis
of its contentions in the representation proceeding that
its charge nurse LPNs are statutory supervisors, that an
overall unit of service and maintenance employees in­
cluding the LPNs is inappropriate, and that the passage
of time and turnover at the facility require a new elec­
tion.
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.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in Bayside, Wis­
consin, has been engaged in the operation of a nursing
home providing medical care. During the year ended
December 31, 1996, the Respondent, in conducting its
operation, derived gross revenues in excess of
$100,000 and purchased and received goods and mate-
rials valued in excess of $5000 directly from suppliers
located outside the State of Wisconsin. 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
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 27, 1994, the
Union was certified on December 26, 1996, as the ex­
clusive collective-bargaining representative of the em­
ployees in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees of the Employer including
certified nursing assistants, LPN charge nurses,
restorative aides, unit secretaries, dietary aides
and cooks; but excluding administrator, assistant
administrator, Director of Nursing, Assistant Di­
rector of Nursing, RN’s, volunteers, nurse techni­
cians, office and clerical employees, business of­
fice 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 January 15 and 23, 1997, the Union requested
the Respondent to meet and bargain, and since January
15, 1997, the Respondent has failed to respond. We
find that this failure to respond constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act. See, e.g., Indeck Energy Services, 318
NLRB 321 (1995).
1 Member Higgins did not participate in the underlying representa­
tion proceeding. He agrees, however, that the Respondent has not
raised any representation issue that is properly litigable before the
Board in this ‘‘technical’’ refusal to bargain unfair labor practice
proceeding.
323 NLRB No. 85
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
By failing since January 15, 1997, to meet and bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices affecting commerce within the meaning of Sec­
tion 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, Grancare, Inc. d/b/a Audubon Health Care
Center, Bayside Wisconsin, its officers, agents, succes­
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Food & Com­
mercial Workers Union, Local 1444 Chartered by the
UFCW International Union, AFL-CIO, CLC, as the ex­
clusive 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, meet and bargain with the Union as
the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment, and if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time service and
maintenance employees of the Employer including
certified nursing assistants, LPN charge nurses,
restorative aides, unit secretaries, dietary aides
and cooks; but excluding administrator, assistant
administrator, Director of Nursing, Assistant Di­
rector of Nursing, RN’s, volunteers, nurse techni­
cians, office and clerical employees, business of­
fice employees, guards and supervisors as defined
in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Bayside, Wisconsin, copies of the at­
tached notice marked ‘‘Appendix.’’2 Copies of the no­
tice, on forms provided by the Regional Director for
Region 30 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 January 31, 1997.
(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. April 25, 1997
������������������
William B. Gould IV, Chairman
������������������
Sarah M. Fox, Member
������������������
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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
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.’’
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.
AUDUBON HEALTH CARE CENTER 3
WE WILL NOT refuse to bargain with United Food
& Commercial Workers Union, Local 1444 Chartered
by the UFCW International Union, AFL–CIO, CLC 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, meet and 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 service and
maintenance employees employed by us including
certified nursing assistants, LPN charge nurses,
restorative aides, unit secretaries, dietary aides
and cooks; but excluding administrator, assistant
administrator, Director of Nursing, Assistant Di­
rector of Nursing, RN’s, volunteers, nurse techni­
cians, office and clerical employees, business of­
fice employees, guards and supervisors as defined
in the Act.
GRANCARE, INC. D/B/A AUDUBON
HEALTH CARE CENTER