Specialty Healthcare And Rehabilitation Center of Mobile, Inc.

• Citation: 357 NLRB No. 174
• Decision Date: 30 December 2011
• Docket Number: 15-CA-68248
• Parties: SPECIALTY HEALTHCARE AND REHABILITATION CENTER OF MOBILE, INC. AND UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY ALLIEDINDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO/CLC
• Court: National Labor Relations Board

357 NLRB No. 174

SPECIALTY HEALTHCARE AND REHABILITATION CENTER OF MOBILE, INC. AND UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY ALLIEDINDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, AFL-CIO/CLC

No. 15-CA-68248

United States of America, National Labor Relations Board

December 30, 2011

DECISION AND ORDER

Mark Gaston Pearce, Chairman

This is a refusal-to-bargain case in which the Respondent, Specialty Healthcare and Rehabilitation Center of Mobile, Inc., ^[1] is contesting the Union's certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge filed on November 4, 2011, the Acting General Counsel issued the complaint on November 16, 2011, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union's request to bargain following the Union's certification in Case 15-RC-8773. (Official notice is taken of the “ record” in the representation proceeding as defined in the Board's Rules and Regulations, Sections 102.68 and 102.69(g); Frontier Hotel, 265 N.L.R.B. 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 7, 2011, the Acting General Counsel filed a Motion for Summary Judgment and a memorandum in support. On December 8, 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.

Ruling on Motion for Summary Judgment

The Respondent admits its failure and refusal to bargain, but contests the validity of the Union's certification based on its contention in the underlying representation proceeding that the bargaining unit is inappropriate.^[2]

All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor 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 unfair labor practice proceeding.^[3] See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).

Accordingly, we grant the Motion for Summary Judgment.^[4]

On the entire record, the Board makes the following

FINDINGS OF FACT

I. JURISDICTION

At all material times, the Respondent, a corporation, with an office and place of business in Mobile, Alabama, the Respondent's facility, has been engaged in the business of operating a health care facility.^[5]

Annually, the Respondent, in conducting its operations described above, derives gross revenues in excess of $100, 000, and purchases and receives at its Mobile, Alabama facility products, goods, and materials valued in excess of $5000 directly from points outside the State of Alabama.

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, ^[6] and that the Union, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied-Industrial and Service Workers International Union, AFL-CIO/CLC, 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 February 20, 2009, the Union was certified on September 26, 2011, as the exclusive collective-bargaining representative of the employees in the following appropriate unit:

Including: All full-time and regular part-time Certified Nursing Assistants (CNAs) employed by the Employer at its Mobile, Alabama facility.

Excluding: All other employees, guards and supervisors as defined in the Act.

The Union continues to be the exclusive collectivebargaining representative of the unit employees under Section 9(a) of the Act.

B. Refusal to Bargain

At all material times, David Grimes held the position of executive director and has been supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act.

On about October 19, 2011, the Union, by letter, requested the Respondent to bargain with it as the exclusive collective-bargaining representative of the unit.

Since about November 3, 2011, the Respondent has failed and refused to bargain with the Union as the exclusive collective-bargaining representative of the Union.

We find that this failure and refusal constitutes an unlawful failure and refusal to 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 November 3, 2011, to bargain with the Union as the exclusive collectivebargaining 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 certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 N.L.R.B. 785 (1962); Lamar Hotel, 140 N.L.R.B. 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir....