Wedgewood Healthcare Center

National Labor Relations Board - Board Decisions

Apr 29, 2011

356 NLRB No. 147 (N.L.R.B. 2011)

356 NLRB No. 147
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.
Lakeland Health Care Associates, LLC d/b/a
Wedgewood Healthcare Center and United Food
and Commercial Workers Union, Local 1625.
Case 12–CA–27044
April 29, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
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 on February 9, 2011, the
Acting General Counsel issued the complaint on Febru-
ary 22, 2011, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to bargain following the Union’s certifica-
tion in Case 12–RC–9426. (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 deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On March 18, 2011, the Acting General Counsel filed
a Motion for Summary Judgment. On March 23, 2011,
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
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification based on its
objections to the election in the representation proceed-
ing.1
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

1 In its answer to the complaint, the Respondent alleges as an af-
firmative defense that the allegations of the complaint are barred by
Sec. 10(b) of the Act. However, the Respondent has not presented any
factual or legal basis in support of this defense, and its answer admits
the complaint allegations that the charge was filed on February 9, 2011,
and that it has refused to bargain with the Union since January 13,
2011. We therefore find that the Respondent’s 10(b) defense is without
merit.
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.2 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 and shall order the Re-
spondent to recognize and bargain with the Union.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida limited
liability company with an office and place of business
located in Lakeland, Florida, the Lakeland facility, has
been engaged in the business of operating a nursing
home.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $100,000, and purchased and received at its
Lakeland, Florida facility goods and materials valued in
excess of $50,000 directly from points outside the State
of Florida.
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 has been a health care institution
within the meaning of Section 2(14) of the Act. We fur-
ther find that United Food and Commercial Workers In-
ternational Union, Local 1625 is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a representation election held October 21,
2010, the Union was certified on January 6, 2011, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:3

2 Member Hayes would have granted review in the underlying repre-
sentation proceeding. He agrees, however, that the Respondent has not
raised any new matters that are properly litigatable in this unfair labor
practice proceeding, and that summary judgment is appropriate.
3 Although the certification of representative in Case 12–RC–9426
and the complaint in the instant proceeding describe the unit as “all
licensed practice nurse team leaders” (emphasis added), there appears
to be no dispute that the appropriate unit includes the Respondent’s
licensed practical nurses, as referenced in the Acting General Counsel’s
motion. Accordingly, we have corrected the unit description.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All licensed practical nurse team leaders employed at
Respondent’s facility located at 1010 Carpenter’s Way,
Lakeland, Florida; excluding all other employees,
guards and supervisors as defined 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
About January 12, 2011, the Union, by letter, re-
quested that the Respondent bargain collectively with it
as the exclusive collective-bargaining representative of
the unit. Since about January 13, 2011, the Respondent
has failed and refused to recognize and bargain with the
Union. We find that this failure and refusal constitutes
an unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing since about January 13, 2011,
to recognize and bargain with the Union as the exclusive
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 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 law, we shall construe the initial period of the certifi-
cation 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); 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
Respondent, Lakeland Health Care Associates, LLC
d/b/a Wedgewood Healthcare Center, Lakeland, Florida,
its 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 International Un-
ion, Local 1625, 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 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 licensed practical nurse team leaders employed at
Respondent’s facility located at 1010 Carpenter’s Way,
Lakeland, Florida; excluding all other employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Lakeland, Florida, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 12,
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 email, 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.5
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 the facility 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 Respon-
dent at any time since January 13, 2011.
(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

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 an Order of the
National Labor Relations Board.”
5 For the reasons stated in his dissenting opinion in J. Picini Floor-
ing, 356 NLRB No. 9 (2010), Member Hayes would not require elec-
tronic distribution of the notice.
WEDGEWOOD HEALTHCARE CENTER 3
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 29, 2011
Wilma B. Liebman, Chairman
Craig Becker, 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 United Food and Commercial Workers International
Union, Local 1625, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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 licensed practical nurse team leaders employed at
our facility located at 1010 Carpenter’s Way, Lakeland,
Florida; excluding all other employees, guards and su-
pervisors as defined in the Act.
LAKELAND HEALTH CARE ASSOCIATES, LLC
D/B/A WEDGEWOOD HEALTHCARE CENTER