Carter Hall Nursing Home

National Labor Relations Board - Board Decisions

Nov 21, 1996

322 N.L.R.B. 97 (N.L.R.B. 1996)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Beverly Enterprises - Virginia, Inc., d/b/a Carter
Hall Nursing Home and United Mine Workers
of America, International Union. Cases 11–CA–
16107 and 11–CA–17139
November 21, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Pursuant to a charge and amended charge filed in
Case 11-CA-16107 on July 5 and 11, 1994, respec­
tively, and a charge filed in Case 11-CA-17139 on Au-
gust 12, 1996, the General Counsel of the National
Labor Relations Board issued an order consolidating
cases, consolidated complaint, and notice of hearing on
August 29, 1996, alleging that the Respondent has vio­
lated Section 8(a)(5) and (1) of the National Labor Re­
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 11–RC–
5898. (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 Respond­
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On October 25, 1996, the General Counsel filed a
Motion to Strike Portions of Respondent’s Answer to
Consolidated Complaint and Motion for Summary
Judgment and Memorandum in Support. On October
29, 1996, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. On November
12, 1996, 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 and response the Respondent admits its
refusal to bargain but attacks the validity of the certifi­
cation on the basis of the Board’s determination in the
representation proceeding that the Respondent’s LPN
charge nurses are not statutory supervisors.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen­
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre­
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro­
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair 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.1
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is now, and has been at all times
material herein, a Virginia corporation with a facility
located at Dryden, Virginia, where it is engaged in the
business of operating a nursing home where it provides
long-term health care. During the 12-month period pre-
ceding issuance of the complaint, which period is rep­
resentative of all times material herein, the Respond­
ent, in the course and conduct of its operations, de-
rived gross revenues in excess of $100,000 and pur­
chased and received at its Dryden, Virginia facility
goods valued in excess of $5000 directly from points
located outside the Commonwealth of Virginia. We
find that the Respondent is an employer engaged in
commerce within the meaning of Section 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 April 8, 1993, the Union
was certified on June 14, 1996,2 as the exclusive col­
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and part-time service and mainte­
nance employees including cooks, dietary aides,
charge nurses, nursing assistants, certified nursing
assistants, laundry aides, and housekeeping aides,
employed by Respondent at its Dryden, Virginia,
facility, excluding the Administrator, Director of
Nursing, Assistant Director of Nursing, and Reg­
istered Nurses, the Activities Director, the Social
1 As we have granted the General Counsel’s Motion for Summary
Judgment, we find it unnecessary to pass on the General Counsel’s
motion to strike portions of the Respondent’s answer.
Member Fox notes that she did not participate in the underlying
representation case. However, she agrees with her colleagues that the
Respondent has raised no new issues in this ‘‘technical’’ 8(a)(5) case
and that summary judgment is therefore appropriate.
2 The Union was initially certified on March 2, 1994. However, on
August 4, 1994, the Board issued an Order granting the Respond­
ent’s Motion for Reconsideration and Revocation of Certification
and remanded the proceeding to the Regional Director for reconsid­
eration in light of the Supreme Court’s then-recent decision in NLRB
v. Health Care & Retirement Corp., 114 S.Ct. 1778 (1994). There-
after, on December 21, 1994, the Regional Director issued a supple-
mental decision reaffirming his prior finding that the Respondent’s
LPN charge nurses are not supervisors, and on June 14, 1996, the
Board denied the Respondent’s request for review.
322 NLRB No. 97
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Services Director, the Maintenance Supervisor,
the Dietary Services Supervisor, the Housekeeping
and Laundry Supervisor, bookkeepers, all office
clerical employees, guards and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about April 8, 1993, and particularly by letters
dated April 12, 1994, and July 22, 1996, the Union has
requested the Respondent to bargain, and, since about
April 8, 1993, and particularly by letters dated April
25, 1994, and July 30, 1996, the Respondent has re-
fused. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By refusing to bargain with the Union as the exclu­
sive collective-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 Sec­
tion 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 un­
derstanding in a signed agreement.
To ensure that the employees are accorded the serv­
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent 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, Beverly Enterprises - Virginia, Inc., d/b/a
Carter Hall Nursing Home, Dryden, Virginia, its offi­
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America, International Union, as the exclusive bar-
gaining representative of the employees in the bargain­
ing unit.
(b) In any like or related manner interfering with,
restraining, 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 employ­
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and part-time service and mainte­
nance employees including cooks, dietary aides,
charge nurses, nursing assistants, certified nursing
assistants, laundry aides, and housekeeping aides,
employed by Respondent at its Dryden, Virginia,
facility, excluding the Administrator, Director of
Nursing, Assistant Director of Nursing, and Reg­
istered Nurses, the Activities Director, the Social
Services Director, the Maintenance Supervisor,
the Dietary Services Supervisor, the Housekeeping
and Laundry Supervisor, bookkeepers, all office
clerical employees, guards and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Dryden, Virginia, copies of the at­
tached notice marked ‘‘Appendix.’’3 Copies of the no­
tice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 Respondent to ensure that the no­
tices 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 pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since July 5, 1994.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CARTER HALL NURSING HOME 3
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. November 21, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, 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
violated the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Mine
Workers of America, International Union, 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 bargaining unit:
All full-time and part-time service and mainte­
nance employees including cooks, dietary aides,
charge nurses, nursing assistants, certified nursing
assistants, laundry aides, and housekeeping aides,
employed by us at our Dryden, Virginia, facility,
excluding the Administrator, Director of Nursing,
Assistant Director of Nursing, and Registered
Nurses, the Activities Director, the Social Serv­
ices Director, the Maintenance Supervisor, the Di­
etary Services Supervisor, the Housekeeping and
Laundry Supervisor, bookkeepers, all office cleri­
cal employees, guards and supervisors as defined
in the Act.
BEVERLY ENTERPRISES - VIRGINIA, INC.,
D/B/A CARTER HALL NURSING HOME