ManorCare of Kingston PA. LLC

National Labor Relations Board - Board Decisions

Aug 11, 2014

361 N.L.R.B. 186 (N.L.R.B. 2014)

186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ManorCare of Kingston PA, LLC and Laborers In-
ternational Union of North America Local 1310.
Case 04–CA–129388
August 11, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
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 by Laborers In-
ternational Union of North America Local 1310 (the Un-
ion) on May 27, 2014, the General Counsel issued the
complaint on June 3, 2014, alleging that the Respondent
has violated Section 8(a)(5) and (1) of the Act by refus-
ing the Union’s request to recognize and bargain follow-
ing the Union’s certification in Case 04–RC–109516.
(Official notice is taken of the “record” in the representa-
tion 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 allega-
tions in the complaint, and asserting affirmative defens-
es.
On June 16, 2014, the General Counsel filed a Motion
for Summary Judgment and Memorandum in Support of
Motion. On June 17, 2014, 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 on the basis of its
objections to conduct alleged to have affected the results
of the election in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.1 The Respondent does not offer to ad-
1 In its response to Notice to Show Cause, the Respondent argues for
the first time that the Board lacked a quorum at the time it approved the
appointment of Dennis Walsh as Regional Director for Region 4 on
March 10, 2013. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).
The Respondent further argues that the appointment of Regional Direc-
tor Walsh was “null and void,” and that the Board’s subsequent certifi-
cation of the Union is “fatally tainted and cannot stand.”
The Respondent offers no justification for its failure to make these
arguments in a timely fashion in the underlying representation proceed-
ing. Indeed, the Respondent not only failed to raise a timely challenge
to the authority of the Regional Director, it entered into a Stipulated
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).
Accordingly, we grant the Motion for Summary Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware lim-
ited liability company, has been providing skilled nursing
and rehabilitation services at its facility at 200 Second
Avenue, Kingston, Pennsylvania (the Center).
During the 12-month period preceding issuance of the
complaint, the Respondent received gross revenues in
excess of $100,000 and purchased and received at the
Center 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 commerce within the meaning of Section 2(2), (6), and
(7) of the Act and is a health care institution within the
meaning of Section 2(14) of the Act, and that the Union,
Laborers International Union of North America Local
1310, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Election Agreement in which it waived the right to a hearing and ex-
pressly agreed to the conduct of a secret-ballot election. Under these
circumstances, we reject the Respondent’s arguments as untimely, and
we find that the Respondent is estopped from attacking the propriety of
an election to which it has expressly agreed.
Finally, even assuming that the Respondent’s challenge to the Re-
gional Director’s authority was not otherwise barred, the Respondent’s
argument is without merit. In this regard, on July 18, 2014, in an abun-
dance of caution and with a full complement of five Members, the
Board ratified nunc pro tunc and expressly authorized the selection of
Dennis Walsh as Regional Director of Region 4. In a further abun-
dance of caution, on July 30, 2014, Regional Director Walsh affirmed
and ratified any and all actions taken by him or on his behalf during the
period of March 10, 2013, to July 18, 2014.
2 The Respondent’s requests that the complaint be dismissed and a
new election be directed are therefore denied.
Member Johnson notes that he dissented from the majority’s deci-
sion to reverse the hearing officer and to dismiss all objections in the
underlying case. ManorCare of Kingston PA, LLC, 360 NLRB 719,
720 fn. 4 (2014). However, he agrees that the Respondent has not
raised any issue that is properly litigable in this current proceeding.
361 NLRB No. 17

MANORCARE OF KINGSTON, PA 187
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on Septem-
ber 6, 2013, the Union was certified on April 29, 2014,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
INCLUDED: All full-time and regular part-time
CNAs employed by the Employer at its 200 Second
Avenue, Kingston, Pennsylvania facility.
EXCLUDED: All other employees, LPNs, RNs,
maintenance employees, office clerical employees,
guards and supervisors as defined in the Act.3
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
At all material times, Linda Tierson held the position
of interim administrator of the Respondent, and has been
a supervisor of the Respondent within the meaning of
Section 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.
By letter dated May 15, 2014, the Union requested that
the Respondent recognize and bargain with it as the ex-
clusive collective-bargaining representative of the unit.
Since May 16, 2014, the Respondent has failed and re-
fused to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit.
We find that this failure and refusal constitutes an unlaw-
ful failure and refusal to recognize and bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing since May 16, 2014, 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.
3 For purposes of eligibility in the September 6 election, “regular
part-time” included employees who worked an average of 4 hours per
week during the 13-weeks preceding July 23, 2013.
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, ManorCare at Kingston PA, LLC, Kingston,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Laborers International Union of North America Local
1310 as the exclusive collective-bargaining representa-
tive 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 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:
INCLUDED: All full-time and regular part-time
CNAs employed by the Employer at its 200 Second
Avenue, Kingston, Pennsylvania facility.
EXCLUDED: All other employees, LPNs, RNs,
maintenance employees, office clerical employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Kingston, Pennsylvania, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent's authorized rep-
resentative, 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. In addition to physical posting of paper
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-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 188
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily 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 cov-
ered 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 current em-
ployees and former employees employed by the Re-
spondent at any time since May 16, 2014.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation 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 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 Laborers International Union of North America
Local 1310 as the exclusive collective-bargaining repre-
sentative 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:

INCLUDED: All full-time and regular part-time
CNAs employed by us at our 200 Second Avenue,
Kingston, Pennsylvania facility.
EXCLUDED: All other employees, LPNs, RNs,
maintenance employees, office clerical employees,
guards and supervisors as defined in the Act.
MANORCARE OF KINGSTON PA

The Board’s decision can be found at
http://www.nlrb.gov/case/04–CA–129388 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.