Lakepointe Senior Care and Rehab Center, L.L.C.

National Labor Relations Board - Board Decisions

Feb 11, 2016

363 NLRB No. 114 (N.L.R.B. 2016)

363 NLRB No. 114
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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.
Lakepointe Senior Care and Rehab Center, LLC and
SEIU Healthcare Michigan. Case 07–CA–
162939
February 11, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on October 28,
2015, by SEIU Healthcare Michigan (the Union), the
General Counsel issued the complaint on November 10,
2015, alleging that Lakepointe Senior Care and Rehab
Center, LLC (the Respondent) has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to recognize and bargain following the Union’s certifica-
tion in Case 07–RC–143710. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer, admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On November 24, 2015, the General Counsel filed a
Motion for Summary Judgment. On November 25,
2015, the Board issued an order transferring the proceed-
ing 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
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification based on its
contentions, raised and rejected below, that the petition
in the underlying representation proceeding should have
been dismissed because of the controlling determination
made in a prior representation matter involving the same
parties, in which the then-Regional Director found the
nurses at issue to be statutory supervisors. The Respond-
ent further contends that the bargaining unit in this pro-
ceeding is comprised of nurses who are supervisors with-
in the meaning of the Act, and is therefore inappropriate.
All 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, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
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.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Clinton
Township, Michigan (the Respondent’s facility), and has
been engaged in the operation of a residential nursing
facility.
In conducting its operations during the 12-month peri-
od ending October 31, 2015, a representative period, the
Respondent derived gross revenues in excess of
$100,000, and purchased and received at its facility
products, goods, and materials in excess of $5000 direct-
ly from points outside the State of Michigan.
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 healthcare institution within the
meaning of Section 2(14) of the Act.
We further find 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 representation election held on June 26,
2015, the Union was certified on July 7, 2015, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time, regular part-time, and contingent charge
nurses and wound care nurses employed by the Re-
spondent at its facility located at 37700 Harper, Clinton
Township, Michigan; but excluding all MDS nurses, all
other employees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.

1 The Respondent’s requests that the complaint be dismissed and
that it be awarded its actual attorney fees and costs under the Equal
Access to Justice Act are therefore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
Since about August 20, 2015, by electronic mail mes-
sages to the Respondent’s designated labor counsel, the
Union requested that the Respondent recognize and bar-
gain with it as the exclusive collective-bargaining repre-
sentative of the unit. Since about August 20, 2015, the
Respondent has failed and refused to recognize and bar-
gain with the Union. We find that the Respondent’s
conduct constitutes an unlawful failure and refusal to
recognize and bargain with the Union in violation of Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since August 20, 2015, to rec-
ognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the 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 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 Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Lakepointe Senior Care and Rehab Center,
LLC, Clinton Township, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
SEIU Healthcare Michigan as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time, regular part-time, and contingent charge
nurses and wound care nurses employed by the Re-
spondent at its facility located at 37700 Harper, Clinton
Township, Michigan; but excluding all MDS nurses, all
other employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facility at 37700 Harper, Clinton Township, Michi-
gan, copies of the attached notice marked “Appendix.”2
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent’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. In addition to
physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means,
if the Respondent customarily communicates with its
employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. If the
Respondent has gone out of business or closed the facili-
ty 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 August 20,
2015.

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.”
LAKEPOINTE SENIOR CARE & REHAB CENTER, LLC 3
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 7 a sworn certification
of a responsible official on a form provided by the Re-
gion attesting to the steps that the Respondent has taken
to comply.
Dated, Washington, D.C. February 11, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) 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 vio-
lated 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 fail and refuse to recognize and bargain
with SEIU Healthcare Michigan as the exclusive collec-
tive-bargaining 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
listed above.
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 fol-
lowing bargaining unit:
All full-time, regular part-time, and contingent charge
nurses and wound care nurses employed by us at our
facility located at 37700 Harper, Clinton Township,
Michigan; but excluding all MDS nurses, all other em-
ployees, guards and supervisors as defined in the Act.
LAKEPOINTE SENIOR CARE AND REHAB
CENTER, LLC
The Board’s decision can be found at
www.nlrb.gov/case/07–CA–162939 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.