University Park Living Center

National Labor Relations Board - Board Decisions

Aug 6, 1999

328 N.L.R.B. 1172 (N.L.R.B. 1999)

DECISIONS OF THE NATIONALLABOR RELATIONS BOARD 1172
University Park Living Center and Local 79, Service
Employees International Union, AFL–CIO. Case
7–CA–42066
August 6, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
Pursuant to a charge filed on May 25, 1999, the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on June 2, 1999, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing the Union’s re-
quest to bargain following the Union’s certification in
Case 7–RC–21477. (Official notice is taken of the “re-
cord” 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 deny-
ing in part the allegations in the complaint.
On June 28, 1999, the General Counsel filed a Motion
for Summary Judgment. On June 30, 1999, 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.
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 answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of its contention, rejected in the representation pro-
ceeding, that the certified unit is inappropriate because
the registered nurses and the licensed practical nurses
who constitute the unit are supervisors within the mean-
ing of the Act.
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

Act.
1 The Respondent’s request to dismiss the complaint is therefore de-
nied.
FINDINGS OF FACT
I. JURISDICTION
At all times, the Respondent, a corporation, with an of-
fice and place of business in Muskegon, Michigan, has
been engaged in the operation of a nursing home.
During the calendar year ending December 31, 1998,
the Respondent, in the conduct of its business operations,
derived gross revenues in excess of $200,000, and pur-
chased and caused to be shipped to its Muskegon, Michi-
gan facility goods and materials valued in excess of
$50,000 directly from suppliers located 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 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 March 19, 1999, the Union
was certified on March 29, 1999, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time unit managers em-
ployed by the Employer at its facility located at 570
South Harvey Street, Muskegon, Michigan; but exclud-
ing medical records secretary, central supply purchaser,
staff development, clinical resource manager, aging
service referral coordinator, clinical care coordinators,
service and maintenance employees, guards and
supervisors as defined in the

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By letter to the Union dated May 19, 1999, the Re-
spondent refused to recognize and bargain with the Un-
ion because it disagreed with the Board’s finding that its
registered nurses and licensed practical nurses who had
the title of “unit managers” were not supervisors. The
Respondent’s letter advised the Union that “[i]t is Uni-
versity Park’s intent to request the Sixth Circuit Court of
Appeals to review the NLRB’s decision. University Park
is hereby informing you of its refusal to recognize SEIU
Local 79 as the collective bargaining representative of its
Unit Managers. Therefore, University Park will not meet
with SEIU Local 79 representatives to negotiate a collec-
tive bargaining agreement.”2 We find that this refusal
2 The complaint alleges that on about April 29, 1999, the Union, in
writing, requested the Respondent to recognize and bargain with it.
The Respondent’s answer denies this allegation. The General Counsel
has not attached a copy of the Union’s letter to his Motion for Sum-
mary Judgment. We find, however, that the Respondent’s denial raises
no issue warranting a hearing in this proceeding. The Respondent’s
answer admits the complaint allegation that it has refused to recognize
328 NLRB No. 169
UNIVERSITY PARK LIVING CENTER 1173
constitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after May 19, 1999, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit, 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 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, University Park Living Center, Muskegon,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Local 79, Service Em-
ployees International Union, AFL–CIO as the exclusive
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 representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:

Act.

and bargain with the Union. It is clear from both the Respondent’s
answer and its response to the General Counsel’s motion that the Re-
spondent is in fact refusing to recognize and bargain with the Union in
order to test the certification and that this refusal is based solely on its
contention that it is under no legal obligation to bargain with the Union
because the certification is invalid. Further, in light of the Respon-
dent’s May 19, 1999 letter, any subsequent bargaining request by the
Union would be futile. Fairleigh Dickinson University, 253 NLRB
1049, 1050 (1981), enfd. 732 F.2d 146 (3d Cir. 1984).
All full-time and regular part-time unit managers em-
ployed by the Employer at its facility located at 570
South Harvey Street, Muskegon, Michigan; but exclud-
ing medical records secretary, central supply purchaser,
staff development, clinical resource manager, aging
service referral coordinator, clinical care coordinators,
service and maintenance employees, guards and
supervisors as defined in the

(b) Within 14 days after service by the Region, post at
its facility in Muskegon, Michigan, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 7
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since May 19, 1999.
(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.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from my colleagues’ denial of the Employer’s
request for review of the Regional Director’s decision in
which he found that the Employer’s registered nurses and
licensed practical nurses (unit managers) were not super-
visors within the meaning of the Act. Accordingly, I dis-
sent from my colleagues’ granting the General Counsel’s
Motion for Summary Judgment and their finding that the
Employer violated Section 8(a)(5) and (1) of the Act in
this certification-testing proceeding.
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.
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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1174

WE WILL NOT refuse to bargain with Local 79, Service
Employees International Union, AFL–CIO as the exclu-
sive 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 unit managers em-
ployed by us at our facility located at 570 South Harvey
Street, Muskegon, Michigan; but excluding medical re-
cords secretary, central supply purchaser, staff devel-
opment, clinical resource manager, aging service refer-
ral coordinator, clinical care coordinators, service and
maintenance employees, guards and supervisors as de-
fined in the Act.
UNIVERSITY PARK LIVING CENTER