Bloomfield Health Care Center

National Labor Relations Board - Board Decisions

Jun 27, 2008

352 N.L.R.B. 94 (N.L.R.B. 2008)

352 NLRB No. 94
NOTICE: This opinion is subject to formal revision before publication in the
bound 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 errors so that corrections
can be included in the bound volumes.
Bloomfield Health Care Center and New England
Health Care Employees Union, District 1199,
SEIU. Case 34–CA–12029
June 27, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing.1 Pursuant to a charge filed on April 23, 2008, the
General Counsel issued the complaint on May 1, 2008,
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 34–RC–
2172. (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 asserting an affirmative de-
fense.
On May 27, 2008, the General Counsel filed a Motion
for Summary Judgment. On May 29, 2008, 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 Judgment2
The Respondent admits that it has refused to bargain,
but contests the validity of the certification on the basis
of its objections to the election in the representation pro-
ceeding. All representation issued raised by the Respon-
dent were or could have been litigated in the prior repre-
sentation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and 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

1 352 NLRB No. 39 (2008).
2 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
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). 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, a Connecticut
corporation with a facility located in Bloomfield, Con-
necticut, herein called its facility, has been engaged in
the operation of a nursing home providing skilled nursing
care.
During the 12-month period ending March 31, 2008,
the Respondent, in conducting its operations described
above, derived gross revenues in excess of $100,000 and
purchased and received at its facility goods valued in
excess of $5000 directly from points outside the State of
Connecticut.
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, and that the Union,
New England Health Care Employees Union, District
1199, SEIU, 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 May 18,
2006, the Union was certified on March 20, 2008, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time service and mainte-
nance employees, including all certified nursing assis-
tants, rehabilitation aides, dietary aides, recreation
aides, cooks, housekeepers, laundry aides, sched-
uler/supply coordinators, receptionists, and mainte-
nance employees; but excluding all business office
clerical employees, certified therapeutic recreation di-
rectors, payroll clerks, and all other employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By letters dated March 26 and April 17, 2008, the Un-
ion requested that the Respondent bargain with it as the
exclusive collective-bargaining representative of the unit.
Since about March 26, 2008, the Respondent has failed
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
and refused to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the
unit. 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 since about March 26, 2008, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the unit employees, the Re-
spondent 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 initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Charging 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); and 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, Bloomfield Health Care Center, Bloomfield,
Connecticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain with New Eng-
land Health Care Employees Union, District 1199, SEIU,
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, recognize 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 agreement in a signed agreement:
All full-time and regular part-time service and mainte-
nance employees, including all certified nursing assis-
tants, rehabilitation aides, dietary aides, recreation
aides, cooks, housekeepers, laundry aides, sched-
uler/supply coordinators, receptionists, and mainte-
nance employees; but excluding all business office
clerical employees, certified therapeutic recreation di-
rectors, payroll clerks, and all other employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Bloomfield, Connecticut, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 26,
2008.
(c) 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.
Dated, Washington, D.C. June 27, 2008
Peter C. Schaumber, Chairman
Wilma B. Liebman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES

3 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.”
BLOOMFIELD HEALTH CARE CENTER
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board had 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to recognize and bargain with
New England Health Care Employees Union, District
1199, SEIU, as the exclusive collective-bargaining repre-
sentative 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, recognize and bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the following bargaining unit:
All full-time and regular part-time service and main-
tenance employees, including all certified nursing
assistants, rehabilitation aides, dietary aides, recrea-
tion aides, cooks, housekeepers, laundry aides,
scheduler/supply coordinators, receptionists, and
maintenance employees; but excluding all business
office clerical employees, certified therapeutic rec-
reation directors, payroll clerks, and all other em-
ployees, and all professional employees, guards and
supervisors as defined in the Act.
BLOOMFIELD HEALTH CARE CENTER