Lynwood Healthcare Center, 200 (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.

Beverly Enterprises-Minnesota, Inc. d/b/a Lynwood Health Care Center and Minnesota's Health Care Union, Local 113, SEIU, AFL- CIO, CLC. Case 18-CA-14467

July 3, 1997

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS

Pursuant to a charge filed on May 12, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 16, 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 18-RC-16062 as the exclusive bargaining representative of the registered nurses (RNs) and licensed practical nurses (LPNs) employed at the Respondent's Fridley, Minnesota facility. (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 June 3, 1997, the General Counsel filed a Motion for Summary Judgment. On June 5, 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. On June 19, 1997, the Respondent filed a response.

Ruling on Motion for Summary Judgment

In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of its contentions in the representation proceeding that the RNs and LPNs employed at the Respondent's Fridley, Minnesota facility are statutory supervisors as defined in Section 2(11) of the Act.

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).

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 California corporation, has been engaged in the operation of a skilled residential nursing facility in Fridley, Minnesota. During the calendar year ending December 31, 1996, the Respondent, in conducting its business operations, derived gross revenues in excess of $500,000 and purchased and received at its Minnesota facilities goods and services valued in excess of $50,000 directly from sources and suppliers located outside the State of Minnesota. 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 March 20, 1997, the Union was certified on April 1, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit:

      All full-time and regular part-time registered nurses and licensed practical nurses employed at the Respondent's...