Laurel Rose, No. 97* (1997)

NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Convalescent Center of Norwich, Inc., d/b/a Laurel Rose and New England Health Care Employees Union, District 1199, AFL-CIO. Case 34-CA- 7762

April 30, 1997

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS

Pursuant to a charge filed on February 3, 1997, the General Counsel of the National Labor Relations Board issued a complaint on February 26, 1997, 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-1365. (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 24, 1997, the General Counsel filed a Motion for Summary Judgment. On March 26, 1997, 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 did not file a response.

Ruling on Motion for Summary Judgment

In its answer the Respondent admits that the Union was certified as the exclusive collective-bargaining representative of the unit, and that the Union requested bargaining, but denies that the unit is appropriate, that the Union is the exclusive bargaining representative of the unit, and that the Respondent has refused to bargain with the Union as the collective-bargaining representative of the allegedly appropriate unit.

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. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).

Nor do we find that the Respondent's denial that it has failed and refused to bargain with the exclusive-

bargaining representative of the appropriate unit raises any issue warranting a hearing in this proceeding. The Respondent admits that about January 22, 1997, the Union, by letter, requested the Respondent to bargain and the Respondent does not contend that it has offered or agreed to meet and bargain with the Union since that request. Rather, it is clear from the other denials in the Respondent's answer that the Respondent is in fact refusing to bargain with the Union in order to test the Union's certification.

Accordingly, we grant the Motion for Summary Judgment.1

On the entire record, the Board makes the following

FINDINGS OF FACT

1. JURISDICTION

   At all material times, the Respondent, a corporation with an office and place of business in Norwich, Connecticut, has been engaged in the operation of a nursing home. During the 12-month period ending January 31, 1997, the Respondent, in conducting its operations described above, derived gross revenues in excess of $100,000 and purchased and received at its Norwich, Connecticut facility goods valued in excess of $50,000 directly from points outside the State of Connecticut. We find that the Respondent is an employer engaged in commerce 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.

2. ALLEGED UNFAIR LABOR PRACTICES

   1. The Certification

      Following the election held December 15, 1995, the Union was certified on January 17, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit:

      All full-time and regular part-time service and maintenance employees employed by the Employer including licensed practical nurses,...