Frontier of Connecticut, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1998

326 N.L.R.B. 43 (N.L.R.B. 1998)

CENTER FOR OPTIMUM CARE 43
Frontier of Connecticut, Inc. d/b/a Center for Opti-
mum Care and New England Health Care Em-
ployees Union, District 1199, AFL–CIO. Case
34–CA–8281
August 12, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
Pursuant to a charge filed on March 17, 1998, the Act-
ing General Counsel of the National Labor Relations
Board issued a complaint on April 27, 1998, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 34–RC–1520. (Official notice is taken of the “re-
cord” 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.
On May 29, 1998, the Acting General Counsel filed a
Motion for Summary Judgment. On June 2, 1998, 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
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of its contention, rejected in the representation pro-
ceeding, that the certified unit is inappropriate because
the registered nurses and the licensed practical nurses
who constitute the unit are supervisors within the mean-
ing of the Act.
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.
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 an office and place of business in West
Hartford, Connecticut (facility), has been engaged in the
operation of a skilled and semiskilled nursing facility
providing health care services to the general public.
During the 12-month period ending March 31, 1998, the
Respondent in conducting its business operations de-
scribed above, derived gross revenues in excess of
$100,000 and purchased and received at its West Hart-
ford facility goods valued at more than $50,000 directly
from points outside the State of Connecticut. We find
that the Respondent is an employer engaged in com-
merce 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 January 8, 1998, the Union
was certified on February 3, 1998, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:

All full-time and regular part-time registered nurses
and licensed practical nurses employed by the Em-
ployer at its West Hartford, Connecticut facility; but
excluding all other employees, RN shift supervisors,
per diem RN shift supervisors, the executive director,
director of nursing services, assistant director of nurs-
ing services, inservice/staff development coordinator,
and guards, other professional employees and other su-
pervisors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since February 5, 1998, the Union has requested the
Respondent to bargain, and, since February 5, 1998, the
Respondent has refused. We find that this refusal consti-
tutes an unlawful refusal to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after February 5, 1998, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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
certification as beginning the date the Respondent begins
326 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44
to bargain in good faith with the Union. Mar-Jac Poul-
try 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, Frontier of Connecticut, Inc. d/b/a Center
for Optimum Care, West Hartford, Connecticut, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with New England Health
Care Employees Union, District 1199, AFL–CIO as the
exclusive 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
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and
if an understanding is reached, embody the understand-
ing in a signed agreement:

All full-time and regular part-time registered nurses
and licensed practical nurses employed by the Em-
ployer at its West Hartford, Connecticut facility; but
excluding all other employees, RN shift supervisors,
per diem RN shift supervisors, the executive director,
director of nursing services, assistant director of nurs-
ing services, inservice/staff development coordinator,
and guards, other professional employees and other su-
pervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in West Hartford, Connecticut, copies of the
attached notice marked “Appendix.’’1 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 34 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. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, 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 facil-

1 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.”

ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 5,
1998.
(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.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from my colleagues’ denial of the Employer’s
request for review of the Acting Regional Director’s De-
cision and Direction of Election, in which he found that
the Employer’s RN and LPN charge nurses were not
supervisors within the meaning of the Act. Review of
the record was initially denied and here, effectively, my
colleagues continue to deny review. In light of the close
scrutiny of the Board’s decisions in the charge nurse area
by the courts, I believe it both appropriate and essential
that where, as here, significant factual issues have been
raised, the Board give each record a full and careful re-
view. See, e.g., Altercare of Hartville v. NLRB, 129
F.3d 365 (6th Cir. 1997), denying enforcement to 321
NLRB 847 (1996), and Cedar Ridge Nursing & Reha-
bilitation Center v. NLRB, 147 F.3d 333 (4th Cir. 1998),
denying enforcement to 322 NLRB No. 29 (1996) (not
reported in Board volumes).
Accordingly, I dissent from my colleagues’ granting
the Acting General Counsel’s Motion for Summary
Judgment and their finding that the Employer violated
Section 8(a)(5) and (1) in this certification-testing pro-
ceeding.

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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with New England
Health Care Employees Union, District 1199, AFL–CIO
as the exclusive 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 bar-
gaining unit:

CENTER FOR OPTIMUM CARE 45
All full-time and regular part-time registered nurses
and licensed practical nurses employed by us at our
West Hartford, Connecticut facility; but excluding all
other employees, RN shift supervisors, per diem RN
shift supervisors, the executive director, director of
nursing services, assistant director of nursing services,
inservice/staff development coordinator, and guards,
other professional employees and other supervisors as
defined in the Act.
FRONTIER OF CONNECTICUT, INC. d/b/a CENTER
FOR OPTIMUM CARE