St. Francis Health Care Center

National Labor Relations Board - Board Decisions

Jun 12, 1998

325 N.L.R.B. 905 (N.L.R.B. 1998)

905
325 NLRB No. 170
ST. FRANCIS HEALTHCARE CENTRE
1 The Acting General Counsel’s Motion for Summary Judgment
inadvertently refers to Case 8–RC–15230.
2 The Respondent’s answers assert as affirmative defenses, inter
alia, that the allegations of the complaint are barred by Sec. 10(b)
of the Act to the extent they assert unfair labor practices occurring
over 6 months prior to the filing of a valid charge, and that the com-
plaint is also barred by the doctrine of laches. We find that neither
of these defenses raises an issue requiring a hearing in this matter.
The Respondent’s answers admit that the charge in this case was
filed on March 11, 1998, and served by mail on March 12, 1998,
less than 2 weeks after the Respondent’s March 3, 1998 letter ac-
knowledging its refusal to bargain. The complaint clearly alleges a
violation only since the date of the Respondent’s letter of March 3,
1998. The Respondent’s contention that the 10(b) limitations period
applicable to the present complaint commenced on July 28, 1997,
when the Respondent first rejected a bargaining request is not sig-
nificantly different from the 10(b) argument which the Board re-
jected in Bentson Contracting Co., 298 NLRB 199 (1990), enf. de-
nied on other grounds, but affd. in pert. part 941 F.2d 1262, 1264–
1265 fn. 2 (D.C. Cir. 1991). For reasons stated in Bentson, the Re-
spondent’s rejection, on March 3, 1998—during the certification
year—of the Union’s subsequent bargaining request constituted an
independent unfair labor practice. Contrary to the Respondent, the
Board did not exclude cases in which such a second refusal repeated
a refusal communicated in an earlier letter. Rather, the Board held
that, as a matter of law, successive refusals during the certification
year are separate unfair labor practices and cannot be deemed
‘‘merely reiterations of an initial refusal to bargain.’’ 298 NLRB at
200. The Respondent’s reliance on the doctrine of laches is equally
without merit, since the charge that is timely under the statutory lim-
itations period will not be deemed barred by laches. Hawaiian Flour
Mill, 274 NLRB 1108 fn. 2 (1985), enfd. 792 F.2d 1459 (9th Cir.
1986). We therefore find that this defense does not warrant denial
of the Acting General Counsel’s motion for summary judgment.
3 In its answers, the Respondent states that it is without knowledge
or information sufficient to form a belief as to whether the Union
is a labor organization within the meaning of Sec. 2(5) of the Act.
During the representation proceeding the Respondent did not ques-
tion the Union’s status as a labor organization. Its failure to raise
this issue in the underlying representation proceeding precludes the
Respondent from litigating the matter in this proceeding. See Biewer
Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992).
St. Francis Healthcare Centre and District 1199, the
Health Care and Social Services Union, SEIU,
AFL–CIO. Case 8–CA–29739
June 12, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
Pursuant to a charge filed on March 11, 1998, the
Acting General Counsel of the National Labor Rela-
tions Board issued a Complaint and Notice of Hearing
on April 14, 1998, alleging that the Respondent has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 8–RC–
15410.1 (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 and an amended answer admitting
in part and denying in part the allegations in the com-
plaint, and alleging defenses.
On May 13, 1998, the Acting General Counsel filed
a Motion for Summary Judgment. On May 15, 1998,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse.
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 answers the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the following bases: (1) the Board should not have set
aside the first election; (2) the Respondent’s objections
to the second election; and (3) the Board’s underlying
unit determination in the representation proceeding.2
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, an Ohio not-
for-profit corporation, with an office and place of busi-
ness in Green Springs, Ohio, has been engaged in the
operation of a skilled nursing care and rehabilitation
facility.
Annually, the Respondent, in conducting its business
operations described above, derives gross revenues in
excess of $250,000 and, purchases and receives at its
Green Springs facility goods valued in excess of
$50,000 directly from points outside the State of Ohio.
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 that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.3
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906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The first election which was held on October 3 and 4, 1996, was
set aside and a second election was directed by decision dated Feb-
ruary 20, 1997.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the second election held March 20 and
21, 1997,4 the Union was certified on April 24, 1997,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time and regular part-time service mainte-
nance employees employed by the Employer at its
Green Springs, Ohio facility, including nursing as-
sistants, ward clerks, wheelchair specialist aides,
occupational therapy (OT) aides, TR aides, trans-
port drivers, (TR transporters), medical record
transcriptionist, medical record clerks, pastoral
care associates, patient care technicians (PCTs),
unit assistants, cooks, assistant cooks, cold food
product clerks, dietary clerks, dietary aides, cafe-
teria aides, skilled maintenance employees, house-
keepers, laundry operators, laundry/washer opera-
tors, clothing processors, therapeutic recreation
(TR) coordinators, physician relations coordina-
tors, program evaluation specialist, outpatient
service coordinators, admissions coordinators,
switchboard operators/receptionists, lifeguard
/switchboard operators, and engineering techni-
cians, but excluding all professional employees,
licensed practical nurses (LPNs), certified occupa-
tional therapy assistants (COTAs), respiratory
therapists (including RTTS, CRTs and lab techs),
utilization review coordinators, assistant training
instructors, managers of information services
(MIS), dietary technicians, lab assistants
/respiratory therapy, accounting clerks (A), ac-
counting clerks (B), accounts receivable represent-
atives, registered nurses, and all supervisors and
guards as defined by the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About February 20, 1998, the Union, by letter, re-
quested the Respondent to recognize and bargain, and,
since about March 3, 1998, the Respondent has failed
and refused. We find that this failure and refusal con-
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By failing and refusing since about March 3, 1998,
to recognize and bargain with the Union as the exclu-
sive 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 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, St. Francis Health Care Centre, Green
Springs, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain
with District 1199, the Health Care and Social Services
Union, SEIU, 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, recognize and bargain with the
Union as the exclusive representative of the employees
in the following appropriate unit on terms and condi-
tions of employment, and if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time service mainte-
nance employees employed by the Employer at its
Green Springs, Ohio facility, including nursing as-
sistants, ward clerks, wheelchair specialist aides,
occupational therapy (OT) aides, TR aides, trans-
port drivers, (TR transporters), medical record
transcriptionist, medical record clerks, pastoral
care associates, patient care technicians (PCTs),
unit assistants, cooks, assistant cooks, cold food
product clerks, dietary clerks, dietary aides, cafe-
teria aides, skilled maintenance employees, house-
keepers, laundry operators, laundry/washer opera-
tors, clothing processors, therapeutic recreation
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907ST. FRANCIS HEALTHCARE CENTRE
5 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.’’
(TR) coordinators, physician relations coordina-
tors, program evaluation specialist, outpatient
service coordinators, admissions coordinators,
switchboard operators/receptionists, lifeguard
/switchboard operators, and engineering techni-
cians, but excluding all professional employees,
licensed practical nurses (LPNs), certified occupa-
tional therapy assistants (COTAs), respiratory
therapists (including RTTS, CRTs and lab techs),
utilization review coordinators, assistant training
instructors, managers of information services
(MIS), dietary technicians, lab assistants
/respiratory therapy, accounting clerks (A), ac-
counting clerks (B), accounts receivable represent-
atives, registered nurses, and all supervisors and
guards as defined by the Act.
(b) Within 14 days after service by the Region, post
at its facility in Green Springs, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for
Region 8 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 March 3, 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.
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 recognize and bargain with
District 1199, the Health Care and Social Services
Union, SEIU, AFL–CIO, as the exclusive representa-
tive 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 employees in the bargaining unit:
All full-time and regular part-time service mainte-
nance employees employed by us at our Green
Springs, Ohio facility, including nursing assist-
ants, ward clerks, wheelchair specialist aides, oc-
cupational therapy (OT) aides, TR aides, transport
drivers, (TR transporters), medical record
transcriptionist, medical record clerks, pastoral
care associates, patient care technicians (PCTs),
unit assistants, cooks, assistant cooks, cold food
product clerks, dietary clerks, dietary aides, cafe-
teria aides, skilled maintenance employees, house-
keepers, laundry operators, laundry/washer opera-
tors, clothing processors, therapeutic recreation
(TR) coordinators, physician relations coordina-
tors, program evaluation specialist, outpatient
service coordinators, admissions coordinators,
switchboard operators/receptionists, lifeguard
/switchboard operators, and engineering techni-
cians, but excluding all professional employees,
licensed practical nurses (LPNs), certified occupa-
tional therapy assistants (COTAs), respiratory
therapists (including RTTS, CRTs and lab techs),
utilization review coordinators, assistant training
instructors, managers of information services
(MIS), dietary technicians, lab assistants
/respiratory therapy, accounting clerks (A), ac-
counting clerks (B), accounts receivable represent-
atives, registered nurses, and all supervisors and
guards as defined by the Act.
ST. FRANCIS HEALTHCARE CENTRE
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