Brentwood Assisted Living Community

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 NLRB No. 149 (N.L.R.B. 2010)

355 NLRB No. 149
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.
Brentwood Assisted Living Community and Service
Employees International Union Healthcare Illi-
nois/Indiana. Case 13–CA–46045
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
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. Pursuant to a charge filed on May 26, 2010, the
General Counsel issued the complaint on June 3, 2010,
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 13–RC–
21864. (Official notice is taken of the “record” in the
representation proceeding as defined in the Board’s
Rules and Regulations, Sections 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
allegations in the complaint, and asserting affirmative
defenses.1
On June 22, 2010, the Acting General Counsel filed a
Motion for Summary Judgment. On June 24, 2010, 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
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on its objec-
tions to the election in the representation proceeding.2

1 The Respondent’s answer denies sufficient knowledge concerning
the filing and service of the charge. Copies of the charge and affidavit
of service thereof are attached as exhibits to the General Counsel’s
motion, showing the dates as alleged, and the Respondent does not
challenge the authenticity of these documents. Accordingly, we find
that the Respondent’s denials in this regard do not raise any issue of
fact warranting a hearing.
2 In addition to denying that the Union was properly certified, the
Respondent maintains that the Agency’s processing of this case from
August 14, 2009, to April 26, 2010, was undertaken without a proper
quorum, and that, therefore, the processing of the petition, the conduct
of the election, the investigation of the objections, the report on the
Employer’s objections, the conduct of the hearing, and the Hearing
Officer’s decision were all without legal force or effect, citing New
Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010). We find no merit
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.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an assisted-
living community with an office and place of business in
Hobart, Indiana (the Respondent’s facility), has been
engaged in the business of providing assisted-living fa-
cilities and services to seniors.
During 2009, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $100,000, and purchased and received goods and ser-
vices for use at its facility valued in excess of $5000 di-
rectly from points outside the State of Indiana.
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, Service Employees
International Union Healthcare Illinois/Indiana, 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 September
25, 2009, the Union was certified on April 26, 2010, as

in this argument. The Regional Director properly processed the under-
lying representation proceeding by virtue of the authority delegated to
him under Sec. 3(b) of the Act. See 26 F.R. 3911 (Board’s delegation
of authority in representation proceedings to regional directors). Fur-
ther, the April 26, 2010 Decision and Certification of Representative
was issued by a three-member panel.
3 Thus, we deny the Respondent’s request that the complaint be dis-
missed in its entirety. In addition, we deny the Respondent’s request
that its response to the Notice to Show Cause be considered a motion
for reconsideration of the representation case. It is axiomatic that a
motion for reconsideration must be filed in the proceeding in which
reconsideration is sought. Further, the Board’s Rules and Regulations
provide that a motion for reconsideration in a representation proceeding
must be filed within 14 days after service of the decision or report. Sec.
102.65(e)(1) and (2). Therefore, the Respondent’s motion would be
untimely even if it had been filed in the representation proceeding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time service and mainte-
nance employees, including assisted living resident as-
sistants and medication technicians; special care resi-
dent assistants and medication technicians; certified
nursing assistants and qualified medication assistants;
housekeeping employees; activity assistants; conci-
erges; drivers; and cooks and wait staff employees em-
ployed by the Respondent at its facility currently lo-
cated at 1420 Saint Mary’s Circle, Hobart, Indiana; but
excluding all other employees; the Executive Director
and the Business Office Director; the Directors of
Resident Services, Dining Services, Maintenance,
Marketing, Special Care Programs and Activities; the
Housekeeping Supervisor; and all RNs; LPNs and
LVNs; and all office clerical employees and guards,
other professional employees and supervisors as de-
fined in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
By letters dated May 5 and 19, 2010, the Union re-
quested that the Respondent recognize and bargain with
it as the exclusive collective-bargaining representative of
the unit. Since about May 17, 2010, the Respondent has
refused to recognize and bargain with the Union. We
find that this failure and refusal constitutes an unlawful
failure and refusal to recognize and bargain with the Un-
ion in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since May 17, 2010, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit, the Respondent has engaged in unfair la-
bor 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 recognize and bargain on request with the Un-
ion, 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); 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, Brentwood Assisted Living Community,
Hobart, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Service Employees International Union Healthcare Illi-
nois/Indiana, as the exclusive collective-bargaining rep-
resentative 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, bargain with the Union as the exclusive
collective-bargaining 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 service and mainte-
nance employees, including assisted living resident as-
sistants and medication technicians; special care resi-
dent assistants and medication technicians; certified
nursing assistants and qualified medication assistants;
housekeeping employees; activity assistants; conci-
erges; drivers; and cooks and wait staff employees em-
ployed by the Respondent at its facility currently lo-
cated at 1420 Saint Mary’s Circle, Hobart, Indiana; but
excluding all other employees; the Executive Director
and the Business Office Director; the Directors of
Resident Services, Dining Services, Maintenance,
Marketing, Special Care Programs and Activities; the
Housekeeping Supervisor; and all RNs; LPNs and
LVNs; and all office clerical employees and guards,
other professional employees and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Hobart, Indiana, copies of the attached no-
tice marked “Appendix.”4 Copies of the notice, on forms

4 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-
BRENTWOOD ASSISTED LIVING COMMUNITY 3
provided by the Regional Director for Region 13, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent 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 Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 17, 2010.
(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. August 27, 2010
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
Mark Gaston Pearce, 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

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Service Employees International Union Healthcare
Illinois/Indiana, as the exclusive collective-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
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 fol-
lowing bargaining unit:
All full-time and regular part-time service and mainte-
nance employees, including assisted living resident as-
sistants and medication technicians; special care resi-
dent assistants and medication technicians; certified
nursing assistants and qualified medication assistants;
housekeeping employees; activity assistants; conci-
erges; drivers; and cooks and wait staff employees em-
ployed by us at our facility currently located at 1420
Saint Mary’s Circle, Hobart, Indiana; but excluding all
other employees; the Executive Director and the Busi-
ness Office Director; the Directors of Resident Ser-
vices, Dining Services, Maintenance, Marketing, Spe-
cial Care Programs and Activities; the Housekeeping
Supervisor; and all RNs; LPNs and LVNs; and all of-
fice clerical employees and guards, other professional
employees and supervisors as defined in the Act.
BRENTWOOD ASSISTED LIVING COMMUNITY