Regency Grande Nursing & Rehabilitation Center

National Labor Relations Board - Board Decisions

Apr 28, 2011

356 N.L.R.B. 1178 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
356 NLRB No. 146
1178
Regency Grande Nursing and Rehabilitation Center
and 1199 SEIU United Health Care Workers
East, New Jersey Region, Service Employees In-
ternational Union. Case 22–CA–29318
April 28, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
This is a refusal-to-bargain case in which Regency
Grande Nursing and Rehabilitation Center (the Respond-
ent) is contesting the certification of 1199 SEIU United
Health Care Workers East, New Jersey Region, Service
Employees International Union (the Union) as bargaining
representative in the underlying representation proceed-
ing. Regency Grande Nursing & Rehabilitation Center,
355 NLRB 601 (2010).
Pursuant to a charge filed on February 12, 2010, the
General Counsel issued a complaint on March 2, 2010,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s original certification in Cases
22–RC–12889 and 22–RC–12895.1 (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.
On March 16, 2010,2 the General Counsel filed a Mo-
tion for Summary Judgment and a Memorandum in Sup-
port. On March 19, the Board issued an order transfer-

1 Regency Grande Nursing & Rehabilitation Center, 354 NLRB 530
(2009). There, the Board issued a Decision, Order, and Certification of
Representative, which affirmed the judge’s rulings, findings, and con-
clusions regarding ballot challenges, objections, and unfair labor prac-
tices in this consolidated proceeding, and adopted the judge’s recom-
mended Order as modified, including the judge’s recommendation for a
broad remedial order. Id., slip op. at 2 fn. 10. The Respondent filed a
request for reconsideration of this decision which was denied by un-
published order dated October 20, 2009. Thereafter, the Respondent
filed a petition for review in the United States Court of Appeals for the
District of Columbia Circuit, and the General Counsel filed a cross-
application for enforcement.
On June 17, 2010, the United States Supreme Court issued its deci-
sion in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635, holding that
under Sec. 3(b) of the Act, in order to exercise the delegated authority
of the Board, a delegee group of at least three members must be main-
tained. Thereafter, the Board issued an order setting aside the above-
referenced decision and order, and retained this case on its docket for
further action as appropriate.
On August 23, 2010, a three-member panel of the Board issued a
further Decision, Order, and Certification of Representative in the
underlying consolidated Cases 22–CA–28331, 22–CA–28384, 22–RC–
12889, and 22–RC–12895 which is reported at 355 NLRB 601.
2 All dates refer to 2010, unless otherwise indicated.
ring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The Re-
spondent filed a response. Following the issuance of the
Board’s August 23 Decision, Order and Certification of
Representative in the underlying representation proceed-
ing,3 the Board issued a revised Notice to Show Cause in
this proceeding, dated November 16, granting the Gen-
eral Counsel leave to amend its complaint to conform
with the current state of the evidence, setting a due date
for the Respondent’s answer to the amended complaint,
and notifying the parties that cause be shown, in writing,
on or before December 17, as to why the motion for
summary judgment should not be granted.
On November 23, the Acting General Counsel filed a
first amended complaint in this matter which was identi-
cal to the original complaint, except that paragraph 7
alleged August 23 as the date of the Union’s certifica-
tion, paragraph 8 alleged August 23 as the beginning of
the Union’s representative status under Section 9(a) of
the Act, and a new paragraph 10 alleged that the Union
again requested recognition and bargaining on about
September 14. On December 7, the Respondent filed its
answer, which admitted the new allegations of the first
amended complaint, denied the allegations that it failed
and refused to recognize and bargain with the Union or
that any such action was unlawful, and asserted as an
affirmative defense that the certification was invalid be-
cause Member Becker should have recused himself from
the underlying representation proceeding.
The Respondent filed a response to the Revised Notice
to Show Cause on December 15.4 Thereafter, on De-
cember 17, the Acting General Counsel submitted a Sup-
plemental Memorandum in Support of Motion for Sum-
mary Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.5

3 Regency Grande Nursing & Rehabilitation Center, 355 NLRB 601
(2010).
4 In its response to the Revised Notice to Show Cause, the Respond-
ent states that it “repeats and re-alleges all of the arguments put forward
in the underlying representation case,” and argues that summary judg-
ment should be denied for further reasons. In this regard, Respondent
argues that the Board was procedurally barred from issuing a certifica-
tion of representative in the underlying representation proceeding, and
that the Union was not properly certified by the Board because Member
Becker should have recused himself. Each of these arguments was or
could have been raised in the underlying representation proceeding.
Moreover, other than the argument regarding Member Becker’s failure
to recuse himself, the Respondent did not raise these issues in its an-
swer to the amended complaint.
5 Member Pearce is recused and took no part in the consideration of
this case.
REGENCY GRANDE NURSING & REHABILITATION CENTER 1179
Ruling on Motion for Summary Judgment
The Respondent admits in its answer to the original
complaint that it refused to bargain, but denies that the
Union is the exclusive collective-bargaining representa-
tive of the unit employees. In its answer to the amended
complaint, however, the Respondent generally denies
that it has failed and refused to recognize and bargain
with the Union, but it admits that the Union is the exclu-
sive collective-bargaining representative of the unit.
Although the Respondent’s answer to the amended com-
plaint appears to indicate that an issue of fact exists re-
garding whether the Respondent has refused to bargain
with the Union, we find that one does not. In this regard,
notwithstanding its answer to the amended complaint, the
Respondent does not further argue that it has or is pre-
pared to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the unit
employees, and it continues to argue that the Union’s
certification was not valid due to Member Becker’s re-
fusal to recuse himself. In all the circumstances, we find
that the Respondent’s answer to the amended complaint
does not raise any issues warranting a hearing.
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; neither does it allege any special
circumstances 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, 161–162 (1941). Ac-
cordingly, we grant the Motion for Summary Judgment.6
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
corporation with an office and place of business in Do-
ver, New Jersey, has been engaged in the business of
operating a nursing home and rehabilitation center.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, derived gross revenue in excess of $100,000,
and purchased and received at its Dover, New Jersey
facility goods valued in excess of $5000 directly from
points outside the State of New Jersey.

6 The Respondent’s request that the complaint be dismissed in its en-
tirety is therefore denied.
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 is a health care institution within the
meaning of Section 2(14) of the Act. We also 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 April 10,
2008, the Union was certified on August 23, 2010, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time licensed practical
nurses, certified nursing assistants, housekeeping em-
ployees, dietary employees, cooks, laundry aides, rec-
reational aides, nurses aides, and maintenance employ-
ees working at the Respondent’s 65 North Sussex
Street, Dover, New Jersey facility excluding registered
nurses, all other professional employees, guards and
supervisors as defined in the Act.

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
By letter dated January 5, the Union requested the Re-
spondent to recognize and bargain with it as the exclu-
sive collective-bargaining representative of the unit, and,
about September 14, 2010, by letter, the Union repeated
this request. Since about January 5, and continuing to
date, the Respondent has failed and refused to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the unit. We find that this
failure and refusal constitutes an unlawful failure and
refusal to 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 employees in the appropriate unit, the Re-
spondent 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.7

7 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-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1180
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). 8
ORDER
The National Labor Relations Board orders that the
Respondent, Regency Grande Nursing and Rehabilitation
Center, Dover, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
1199 SEIU United Health Care Workers East, New Jer-
sey Region, Service Employees International Union as
the exclusive collective-bargaining representative of the
employees in the bargaining unit.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

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
Respondent’s initial refusal to bargain at the request of the Union, or at
some point later in time. It is undisputed that the Respondent has con-
tinued 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 Respondent’s admitted refusal to bargain became unlawful,
the remedy is the same.
8 For the reasons stated in the underlying proceeding, we find that a
broad order is warranted here because of the Respondent’s continuing
interference with its employees’ statutory rights. Regency Grande
Nursing & Rehabilitation Center, 354 NLRB 530, 531 at fn. 10, incor-
porated by reference in 355 NLRB 601 (2010).
Member Hayes would not give a broad cease-and-desist order. Such
an order would be redundant of the outstanding order against the Re-
spondent and is inappropriate to address the sole violation at issue here
involving the Respondent’s refusal to bargain in order to test the Un-
ion’s certification.
(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, certified nursing assistants, housekeeping em-
ployees, dietary employees, cooks, laundry aides, rec-
reational aides, nurses aides, and maintenance employ-
ees working at the Respondent’s 65 North Sussex
Street, Dover, New Jersey facility excluding registered
nurses, all other professional employees, guards and
supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Dover, New Jersey, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by e-mail, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.10
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed its facilities involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since January 5, 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.

9 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.”
10 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.
REGENCY GRANDE NURSING & REHABILITATION CENTER 1181
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 1199 SEIU United Health Care Workers East, New
Jersey Region, Service Employees International Union as
the exclusive collective-bargaining representative of the
employees in the bargaining unit.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed 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, certified nursing assistants, housekeeping em-
ployees, dietary employees, cooks, laundry aides, rec-
reational aides, nurses aides, and maintenance employ-
ees working at our 65 North Sussex Street, Dover, New
Jersey facility excluding registered nurses, all other
professional employees, guards and supervisors as de-
fined in the Act.

REGENCY GRANDE NURSING AND
REHABILITATION CENTER

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