Northern Health Facilties, Inc. d/b/a Mountain City Nursing and Rehabilitation Center

National Labor Relations Board - Board Decisions

Dec 3, 2010

356 NLRB No. 44 (N.L.R.B. 2010)

356 NLRB No. 44
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive Sec-
retary, National Labor Relations Board, Washington, D.C. 20570, of any ty-
pographical or other formal errors so that corrections can
Northern Health Facilities, Inc. (a subsidiary of Ex-
tendicare Health Services, Inc.) d/b/a Mountain
City Nursing and Rehabilitation Center and
SEIU Healthcare Pennsylvania. Case 4–CA–
37660
December 3, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND PEARCE
DECISION AND ORDER
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 August 27, 2010, the
Acting General Counsel issued the complaint on Sep-
tember 13, 2010, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union's request to bargain following the Union's certifi-
cation in Case 4–RC–21674. (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
Respondent filed an answer, admitting in part and deny-
ing in part the allegations in the complaint, and asserting
an affirmative defense.
On October 4, 2010, the Acting General Counsel filed
a Motion for Summary Judgment and memorandum in
support. On October 6, 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 and a cross-motion for
summary judgment.
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 that the
licensed practical nurses included in the unit are supervi-
sors and the Union was therefore improperly certified.
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, a Delaware cor-
poration with a long-term care facility at Rear 401-403
Hazle Township Boulevard, Hazle Township, Pennsyl-
vania, the Center, has been engaged in providing long-
term skilled nursing care and short-term rehabilitative
services.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its business
operations described above, received gross revenues in
excess of $100,000, and purchased and received at the
Center goods valued in excess of $5000 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 a health care institution within the
meaning of Section 2(14) of the Act, and that the Union,
SEIU Healthcare Pennsylvania, 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 June 3 and
4, 2010, the Union was certified on August 13, 2010, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time Licensed Practical
Nurses employed at the Center, excluding all Regis-
tered Nurses, RNACs, service and maintenance em-
ployees, business office and clerical employees, man-
agers, guards and supervisors as defined 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
At all material times, David Keating held the position
of the Respondent’s vice president, and has been a su-
pervisor of the Respondent within the meaning of Sec-
tion 2(11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act.

1 The Respondent’s request that the complaint be dismissed and its
cross-motion for summary judgment are therefore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
On about August 17, 2010, the Union, by letter, re-
quested the Respondent to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit. On about August 23, 2010, the Re-
spondent, by letter from David Keating, advised the Un-
ion that the Respondent would not recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the unit. Since about August 23, 2010,
the Respondent has refused to recognize and bargain
with the Union. We find that this failure and refusal con-
stitutes an unlawful 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 August 23, 2010, to rec-
ognize and bargain with the Union as the exclusive col-
lective-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 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, Northern Health Facilities, Inc. (a subsidi-
ary of Extendicare Health Services, Inc.), d/b/a Mountain
City Nursing and Rehabilitation Center, Hazle Township,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
SEIU Healthcare Pennsylvania, as the exclusive collec-
tive-bargaining representative 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 Licensed Practical
Nurses employed at the Center, excluding all Regis-
tered Nurses, RNACs, service and maintenance em-
ployees, business office and clerical employees, man-
agers, guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Hazle Township, Pennsylvania, copies of
the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized 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 distributed 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 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 August 23, 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.

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.”
MOUNTAIN CITY NURSING & REHABILITATION CENTER 3
Dated, Washington, D.C. December 3, 2010
______________________________________
Wilma B. Liebman, Chairman
______________________________________
Craig Becker, 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
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with SEIU Healthcare Pennsylvania, 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 Licensed Practical
Nurses employed at the Center, excluding all Regis-
tered Nurses, RNACs, service and maintenance em-
ployees, business office and clerical employees, man-
agers, guards and supervisors as defined in the Act.
NORTHERN HEALTH FACILITIES, INC. (A SUBSIDIARY
OF EXTENDICARE HEALTH SERVICES, INC.) D/B/A
MOUNTAIN CITY NURSING AND REHABILITATION
CENTER