Genesis Health Ventures, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1998

327 N.L.R.B. 137 (N.L.R.B. 1998)

GENESIS HEALTH VENTURES 137
Genesis Health Ventures, Inc., t/a Genesis Elder Care
and Fairview Care Center of Bethlehem Pike
and District 1199C, National Union of Hospital
& Health Care Employees, AFSCME, AFL-
CIO. Case 4–CA–27388
November 27, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
Pursuant to a charge filed on August 19, 1998, the Act-
ing General Counsel of the National Labor Relations
Board issued a complaint on September 15, 1998, alleg-
ing 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 following the Union’s certifi-
cation in Case 4–RC–19345. (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 and an amended answer ad-
mitting in part and denying in part the allegations in the
complaint, and asserting affirmative defenses.
On October 19, 1998, the Acting General Counsel
filed a Motion for Summary Judgment and Memorandum
in Support. On October 21, 1998, the Board issued an
order transferring the proceeding to the Board and a No-
tice 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 response, the Respondent admits its refusal to
bargain but attacks the validity of the certification on the
basis of the Board’s unit determination in the representa-
tion proceeding.
The Respondent affirmatively asserts that the com-
plaint should be dismissed because the Board’s decision
in the underlying representation case with regard to the
supervisory status of its licensed practical nurses (LPNs)
is in error and contrary to the decisions of the Supreme
Court in NLRB v. Healthcare & Retirement Corp., 511
U.S. 571 (1994), and of the Third Circuit in Passavant
Retirement & Health Center v. NLRB, 149 F.3d 243 (3d
Cir. 1998). Specifically, the Respondent argues that the
unit is inappropriate because the LPNs are supervisors
within the meaning of the Act.
The 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 and previously
unavailable evidence or allege any “special circum-
stances” which would provide a basis for the Board to
reexamine the decision made in the representation pro-
ceeding.
In the representation case we denied review of the Act-
ing Regional Director’s Decision and Direction of Elec-
tion as it raised no substantial issues warranting review.
It would be contrary to our long-settled policy to allow
the parties to relitigate representation case issues in “test
of certification” unfair labor practice proceedings, absent
newly discovered or previously unavailable evidence or
special circumstances. See Pittsburgh Plate Glass Co.
v. NLRB, 313 U.S. 146, 162 (1941).
Further, the Respondent’s citation to a decision of the
Third Circuit is selective and fails to acknowledge that
the Board’s position on the supervisory status of nurses
has been upheld by the Eighth, Ninth, and District of
Columbia Circuits. Lynwood Health Care Center v.
NLRB, 148 F.3d 1042 (8th Cir. 1998), enfg. 323 NLRB
No. 200 (July 3, 1997) (not reported in Board volumes);
Grandview Health Care Center v. NLRB, 129 F.3d 1269
(D.C. Cir. 1997), enfg. 322 NLRB No. 54 (Oct. 15,
1996) (not reported in Board volumes); and Providence
Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.
1997), enfg. 321 NLRB No. 100 (July 10, 1996) (not
reported in Board volumes).
Moreover, in Passavant Retirement & Health Center v.
NLRB, the Third Circuit specifically stated it was “not
creating a per se rule that LPNs are supervisors.” 149
F.3d at 249. Indeed, each case must be decided on its
own facts. The Acting Regional Director considered the
entire factual record and the Respondent’s assertions
concerning that record, and concluded that the LPNs are
not supervisors. In doing so, he specifically found that
LPNs do not exercise independent judgment in making
work assignments to the certified nursing assistants
(CNAs). In addition, the evidence presented in the un-
derlying representation case with respect to the involve-
ment of LPNs in the discipline and the evaluation of
CNAs fell short of establishing that the LPNs make ef-
fective recommendations concerning either of these Sec-
tion 2(11) indicia. Significantly, in the disciplinary mat-
ters relied upon by the Respondent, it was predominantly
the House Supervisor, not the LPN, who made the rec-
ommendations. Finally, the Acting Regional Director
noted that the Director of Nursing testified that the
evaluations are not used for promotions, raises and disci-
plinary purposes. Accordingly, we grant the Motion for
Summary Judgment.1
On the entire record, the Board makes the following

1 Member Hurtgen did not participate in the underlying representa-
tion case. He does not necessarily agree with it. However, he agrees
that the Respondent does not raise any new factual matters, and thus
summary judgment is appropriate. Similarly, although there are court
decisions which may well be inconsistent with the legal conclusion
reached in the representation case, Member Hurtgen agrees, for institu-
tional reasons, not to challenge that representation case in this certifica-
tion-testing 8(a)(5) case. See Pittsburgh Plate Glass, supra. Finally,
and for the same reasons, Member Hurtgen does not pass on the effort
here to further support the conclusion reached in the representation
case.
327 NLRB No. 40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Pennsylvania
corporation with a principal place of business in Kennett
Square, Pennsylvania, has been engaged in the owner-
ship, management, and operation of nursing homes and
related health care ventures, including the operation,
ownership, and management of the nursing home in-
volved here, Fairview Care Center of Bethlehem Pike
(the facility).
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, received gross revenues in excess of
$250,000 and purchased and received at the facility
goods valued in excess of $50,000 directly from points
outside the Commonwealth of Pennsylvania. We find
that the Respondent is an employer engaged in com-
merce 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 Un-
ion 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 April 23, 1998, the Union
was certified on May 4, 1998, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time Licensed Practical
Nurses, including regular part-time pool Licensed Prac-
tical Nurses, but excluding all other employees, Regis-
tered Nurses, professional employees, clerical employ-
ees, guards and supervisors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
On about July 17, 1998, by letter, the Union has re-
quested the Respondent to recognize and bargain, and
since on or about that date the Respondent has failed and
refused. We find that this failure and refusal constitutes
an unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after July 17, 1998, to
recognize 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 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 the law, we shall construe the initial period of the cer-
tification 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, Genesis Health Ventures, Inc., t/a Genesis
Elder Care and Fairview Care Center of Bethlehem Pike,
Kennett Square, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with District
1199C, National Union of Hospital & Health Care Em-
ployees, AFSCME, AFL–CIO as the exclusive bargain-
ing 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, embody
the understanding in a signed agreement:

All full-time and regular part-time Licensed Practical
Nurses, including regular part-time pool Licensed Prac-
tical Nurses, but excluding all other employees, Regis-
tered Nurses, professional employees, clerical employ-
ees, guards and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Kennett Square, Pennsylvania, copies of the
attached notice marked “Appendix.”2 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 4 after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and

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 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.”
GENESIS HEALTH VENTURES 139
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 July 17,
1998.
(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.

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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with District 1199C,
National Union of Hospital & Health Care Employees,
AFSCME, 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 bar-
gaining unit:

All full-time and regular part-time Licensed Practical
Nurses, including regular part-time pool Licensed Prac-
tical Nurses, but excluding all other employees, Regis-
tered Nurses, professional employees, clerical employ-
ees, guards and supervisors as defined in the Act.

GENESIS HEALTH VENTURES, INC., T/A
GENESIS ELDER CARE AND FAIRVIEW CARE
CENTER OF BETHLEHEM PIKE