Covenant Care LLC d/b/a Huntington Park Nursing & Rehabilitation

National Labor Relations Board - Board Decisions

Feb 10, 2011

356 NLRB No. 93 (N.L.R.B. 2011)

356 NLRB No. 93
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.
Covenant Care, LLC d/b/a Huntington Park Nursing
and Rehabilitation and SEIU, United Long
Term Care Workers Union, Local 6434. Case
21–CA–39575
February 10, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS
PEARCE AND HAYES
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 by SEIU, United Long
Term Care Workers Union, Local 6434 on November 10,
2010, the Acting General Counsel issued the complaint
on December 1, 2010, alleging that the Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing
the Union’s request to bargain following SEIU, Service
Employees International Union’s certification in Case
21–RC–21140. (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 denying in part the
allegations in the complaint, and asserting affirmative
defenses.
On December 17, 2010, the Acting General Counsel
filed a Motion for Summary Judgment. On December
20, 2010, the Board issued an order transferring the pro-
ceeding 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 of its
objections to conduct alleged to have affected the results
of the election in the representation case.
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).
Accordingly, we grant the Acting General Counsel’s
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 California lim-
ited liability company, with a facility located at 6425
Miles Avenue, Huntington Park, California, has been
engaged in the operation of a nursing care facility.
During the 12-month period ending June 10, 2009, a
representative period, the Respondent, in conducting its
business operations described above, derived gross reve-
nues in excess of $100,000 and purchased and received
at its Huntington Park, California facility goods valued in
excess of $5000 directly from points outside the State of
California.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We also find that SEIU, Service Employ-
ees International Union (the Union), is a labor organiza-
tion within the meaning of Section 2(5) of the Act, and
that SEIU, United Long Term Care Workers Union, Lo-
cal 6434, is a labor organization within the meaning of
Section 2(5) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on July 7,
2009, the Union was certified on September 23, 2010, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All full-time and regular part-time certified nursing as-
sistants (CNAs), restorative nursing assistants (RNAs),
activities assistants, dietary assistants, housekeepers,
laundry aides, maintenance employees, and central sup-
ply employees employed by the Employer at its facility
located at 6425 Miles Avenue, Huntington Park, Cali-
fornia; excluding all other employees, LVN’s, profes-
sional employees, social services employees, medical
records employees, guards and supervisors as defined
in the Act.

1 The Respondent’s cross-motion for summary judgment is therefore
denied.
2 The instant unfair labor practice charge was filed by Local 6434,
and Local 6434 wrote the Respondent on October 4, 2010, requesting
recognition. The complaint alleges, and the Respondent admits, that
this request was on behalf of the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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
On about October 4, 2010, the Union, by letter, re-
quested that the Respondent bargain with it as the exclu-
sive collective-bargaining representative of the unit.
Since about November 5, 2010, the Respondent has
failed and refused to bargain with the Union as the exclu-
sive collective-bargaining representative of the unit. 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 about November 5, 2010,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the unit employ-
ees, 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 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 the law, we shall construe the initial period of the cer-
tification 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
3
The National Labor Relations Board orders that the
Respondent, Covenant Care, LLC d/b/a Huntington Park
Nursing & Rehabilitation, Huntington Park, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
SEIU, Service Employees International Union, the Un-

3 Consistent with our recently issued decision in J. Picini Flooring,
356 NLRB No. 9 (2010), we have ordered the Respondent to distribute
the notice electronically if it is customarily communicating with em-
ployees by such means. For the reasons stated in his dissenting opinion
decision in J. Picini Flooring, 356 NLRB No. 9, Member Hayes would
not require electronic distribution of the notice.
ion, as the exclusive collective-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 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:
All full-time and regular part-time certified nursing as-
sistants (CNAs), restorative nursing assistants (RNAs),
activities assistants, dietary assistants, housekeepers,
laundry aides, maintenance employees, and central sup-
ply employees employed by the Employer at its facility
located at 6425 Miles Avenue, Huntington Park, Cali-
fornia; excluding all other employees, LVN’s, profes-
sional employees, social services employees, medical
records employees, guards and supervisors as defined
in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Huntington Park, California, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 21, 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
this proceeding, 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 about November 5, 2010.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

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 and Order of the
National Labor Relations Board.”
HUNTINGTON PARK NURSING & REHABILITATION 3
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. February 10, 2011
Wilma B. Liebman, Chairman
Mark Gaston Pearce, Member
Brian E. Hayes, 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, Service Employees International Union 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 certified nursing as-
sistants (CNAs), restorative nursing assistants (RNAs),
activities assistants, dietary assistants, housekeepers,
laundry aides, maintenance employees, and central sup-
ply employees employed by us at our facility located at
6425 Miles Avenue, Huntington Park, California; ex-
cluding all other employees, LVN’s, professional em-
ployees, social services employees, medical records
employees, guards and supervisors as defined in the
Act.
COVENANT CARE, LLC D/B/A HUNTINGTON
PARK NURSING & REHABILITATION