Snell Island SNF LLC d/b/a Shore Acres Rehabilitation and Nursing Center, LLC. and HGOP, LLC d/b/a C

National Labor Relations Board - Board Decisions

Nov 9, 2010

356 N.L.R.B. 115 (N.L.R.B. 2010)

SHORE ACRES REHABILITATION & NURSING CENTER 115
Snell Island SNF LLC d/b/a Shore Acres Rehabilita-
tion and Nursing Center, LLC and HGOP, LLC
d/b/a Cambridge Quality Care, LLC and United
Food and Commercial Workers Union, Local
1625. Case 12–CA–25854
November 9, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which the Re-
spondents are contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on May 16, 2008,
the General Counsel issued the complaint on May 28,
2008, alleging that Snell Island SNF, LLC d/b/a Shore
Acres Rehabilitation and Nursing Center, LLC (Re-
spondent Shore Acres) and HGOP, LLC d/b/a Cam-
bridge Quality Care, LLC (Respondent HGOP), the Re-
spondents, have violated Section 8(a)(5) and (1) of the
Act by refusing the Union’s request to bargain following
the Union’s certification in Case 12–RC–9281. (Official
notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB
343 (1982).) The Respondents filed an answer admitting
in part and denying in part the allegations in the com-
plaint, and asserting an affirmative defense.
On June 18, 2008, the General Counsel filed a Motion
for Summary Judgment. On June 19, 2008, 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 Respondents filed a response.
On July 18, 2008, the two sitting members of the
Board issued a Decision and Order in this proceeding,
which is reported at 352 NLRB No. 106.1 Thereafter, the
Respondents filed a petition for review in the United
States Court of Appeals for the Second Circuit, and the
General Counsel filed a cross-application for enforce-
ment. On June 17, 2009, the court enforced the Board’s
Decision and Order.2
On June 17, 2010, the United States Supreme Court is-
sued its decision in New Process Steel, L.P. v. NLRB,
130 S.Ct. 2635, holding that under Section 3(b) of the
1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the powers
of the National Labor Relations Board in anticipation of the expiration
of the terms of Members Kirsanow and Walsh on December 31, 2007.
Thereafter, pursuant to this delegation, the two sitting members issued
decisions and orders in unfair labor practice and representation cases.
2 Snell Island SNF v. NLRB, 568 F.3d 410 (2d Cir. 2009).
Act, in order to exercise the delegated authority of the
Board, a delegee group of at least three members must be
maintained. On June 28, 2010, the Supreme Court grant-
ed the petition for certiorari in the instant proceeding,
vacated the underlying judgment, and remanded the case
to the court of appeals. Thereafter, the court of appeals
remanded this case to the Board for further proceedings
consistent with the Supreme Court’s decision.
On August 27, 2010, the Board issued a further Deci-
sion, Certification of Representative, and Notice to Show
Cause in Cases 12–CA–25854 and 12–RC–9281, which
is reported at 355 NLRB 679. Thereafter, the Acting
General Counsel filed an amended complaint in Case 12–
CA–25854, the Respondents filed an amended answer,
and the Acting General Counsel filed a brief in support
of his motion for summary judgment.
The National Labor Relations Board has consolidated
these proceedings and delegated its authority in both pro-
ceedings to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondents admit the Union’s request for bar-
gaining and their refusal to bargain, but contest the valid-
ity of the Union’s certification. The Respondents allege
as an affirmative defense that they are refusing to bargain
in order to secure judicial review of the certification is-
sued by the Board in Case 12–RC–9281.3
All representation issues raised by the Respondents
were or could have been litigated in the prior representa-
tion proceeding. The Respondents do not offer to adduce
at a hearing any newly discovered and previously una-
vailable evidence, nor do they allege any special circum-
stances that would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that the Respondents have 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.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Shore Acres, a Flor-
ida limited liability company with its principal office and
place of business located in St. Petersburg, Florida, has
3 In their original answer, the Respondents inadvertently referred to
the representation proceeding as Case 12–RC–8576. The Board’s
original decision notes the correct case number is Case 12–RC–9281,
and the Respondents refer to the case number, as corrected, in their
amended answer.
4 Thus, we deny the Respondents’ motion that the complaint be dis-
missed in its entirety.
356 NLRB No. 24

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
been engaged in the operation of a nursing home provid-
ing long-term health care and related services to elderly
and disabled adults located at 4500 Indianapolis Street
NE, St. Petersburg, Florida.
During the 12-month period preceding the issuance of
the complaint, Respondent Shore Acres, in conducting its
business operations described above, derived gross reve-
nues in excess of $100,000, and purchased and received
at its St. Petersburg, Florida facility goods valued in ex-
cess of $50,000 directly from points outside the State of
Florida.
We find that Respondent Shore Acres 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.
At all material times, Respondent HGOP, a New York
limited liability company with its principal office and
place of business located in Brooklyn, New York, has
been engaged in the business of providing employee
staffing services to operators of nursing homes and other
health care facilities, including Respondent Shore Acres,
located at 4500 Indianapolis Street NE, St. Petersburg,
Florida.
During the 12-month period preceding the issuance of
the complaint, Respondent HGOP, in conducting its
business operations described above, derived gross reve-
nues in excess of $500,000, and performed services val-
ued in excess of $50,000 in States other than the State of
New York.
We find that Respondent HGOP is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
At all material times, Respondent Shore Acres has
possessed control over the labor relations policy of Re-
spondent HGOP and has administered a common labor
policy with Respondent HGOP with respect to employ-
ees on the payroll of Respondent HGOP who are em-
ployed at the St. Petersburg, Florida facility.
At all material times, Respondent Shore Acres and Re-
spondent HGOP have been joint employers of the em-
ployees on the payroll of Respondent HGOP who are
employed at the St. Petersburg, Florida facility.
We find 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 representation election held on Decem-
ber 12, 2007, the Board certified the Union on August
27, 2010, as the exclusive collective-bargaining repre-
sentative of the employees in the following appropriate
unit:

All full-time, regular part-time and PRN Certified
Nursing Assistants, restorative aides, staffing coordina-
tors, ward clerks, central supply clerks, cooks, dietary
aides, housekeeping assistants, laundry aides, mainte-
nance assistants, activity assistants and receptionists
employed by the joint Employers at Shore Acres Reha-
bilitation and Nursing Center facility located at 4500
Indianapolis Street, NE, St. Petersburg, Florida, exclud-
ing all other employees, including MDS Coordinator,
registered nurses, licensed practical nurses, therapists,
managerial employees, guards 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
On about March 24, 2008, and September 2, 2010, the
Union, by letters, requested that the Respondents recog-
nize and bargain with it as the exclusive collective-
bargaining representative of the unit. Since about March
24, 2008, and at all times thereafter, the Respondents
have failed and refused to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of the unit. We find that this failure and refusal con-
stitutes an unlawful refusal to recognize and bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees, the Respondents have
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.5
5 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the
Board stated:
Although an employer’s obligation to bargain is established
as of the date of an election in which a majority of unit employees
vote for union representation, the Board has never held that a
simple refusal to initiate collective-bargaining negotiations pend-
ing final Board resolution of timely filed objections to the election
is a per se violation of Section 8(a)(5) and (1). There must be ad-
ditional evidence, drawn from the employer’s whole course of
conduct, which proves that the refusal was made as part of a bad-
faith effort by the employer to avoid its bargaining obligation.
No party has raised this issue, and we find it unnecessary to decide in this
case whether the unfair labor practice began on the date of the Respondents’
initial refusal to bargain at the request of the Union, or at some point later in
time. It is undisputed that the Respondents have continued to refuse to
bargain since the Union’s certification and we find that continuing refusal to
be unlawful. Regardless of the exact date on which the Respondents’ admit-
ted refusal to bargain became unlawful, the remedy is the same.

SHORE ACRES REHABILITATION & NURSING CENTER 117
REMEDY
Having found that the Respondents have violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order them to
cease and desist, to recognize and 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 law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondents begin 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); and 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
Respondents, Snell Island SNF LLC d/b/a Shore Acres
Rehabilitation and Nursing Center, LLC and HGOP,
LLC d/b/a Cambridge Quality Care, LLC, St. Petersburg,
Florida, and Brooklyn, New York, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Food and Commercial Workers Union, Local
1625, 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, recognize and bargain with the Union
as the exclusive 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, regular part-time and PRN Certified
Nursing Assistants, restorative aides, staffing coordina-
tors, ward clerks, central supply clerks, cooks, dietary
aides, housekeeping assistants, laundry aides, mainte-
nance assistants, activity assistants and receptionists
employed by the joint Employers at Shore Acres Reha-
bilitation and Nursing Center facility located at 4500
Indianapolis Street, NE, St. Petersburg, Florida, exclud-
ing all other employees, including MDS Coordinator,
registered nurses, licensed practical nurses, therapists,
managerial employees, guards and supervisors as de-
fined in the Act.

(b) Within 14 days after service by the Region, post at
their facilities in St. Petersburg, Florida, and Brooklyn,
New York, copies of the attached notice marked “Ap-
pendix.”6 Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by
the Respondents’ authorized representatives, shall be
posted by the Respondents and maintained for 60 con-
secutive 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, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondents customarily communi-
cates with its employees by such means.7 Reasonable
steps shall be taken by the Respondents 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 Respondents have gone out of business
or closed the facilities involved in these proceedings, the
Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since March 24, 2008.
(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 Respondents have 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
6 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.”
7 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB 11 (2010), Member Hayes would not require electronic
distribution of the notice.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 118
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 United Food and Commercial Workers Union, Lo-
cal 1625, 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
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 employ-
ees in the following bargaining unit:

All full-time, regular part-time and PRN Certified
Nursing Assistants, restorative aides, staffing coordina-
tors, ward clerks, central supply clerks, cooks, dietary
aides, housekeeping assistants, laundry aides, mainte-
nance assistants, activity assistants and receptionists
employed by us at Shore Acres Rehabilitation and
Nursing Center facility located at 4500 Indianapolis
Street, NE, St. Petersburg, Florida, excluding all other
employees, including MDS Coordinator, registered
nurses, licensed practical nurses, therapists, managerial
employees, guards and supervisors as defined in the
Act.
SNELL ISLAND SNF LLC D/B/A SHORE ACRES
REHABILITATION AND NURSING CENTER, LLC
AND HGOP, LLC D/B/A CAMBRIDGE QUALITY
CARE, LLC