Extract
Northern Montana Health Care, 752 (1997)
Northern Montana Health Care Center, a subsidiary of Northern Montana Health Care, Inc. and United Food and Commercial Workers Union, Local No. 8. Case 27-CA-13394
October 17, 1997DECISION AND ORDERBY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINSOn September 20, 1995, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief.1The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified below and to adopt the recommended Order as modified and set forth in full below.2 1. We adopt the judge's findings that the Respondent, Northern Montana Health Care Center (Care Center), is the legal successor to the predecessor employer, Lutheran Home of the Good Shepherd (the Home), some of whose employees were represented by the Charging Party Union until the Home's sale to the Care Center on August 31, 1994; that the Care Center, Northern Montana Hospital (the Hospital), and their parent corporation, Respondent Northern Montana Health Care, Inc. (the Corporation) constitute a single employer (the Respondent);3 that in early September 1994, the Care Center employed a representative complement of employees, a substantial majority of whom were formerly employed in the predecessor's unit; and that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union.4 We also agree with the judge's finding that the dietary aides, maintenance workers, laundry workers, and housekeepers who regularly work at the Care Center are properly included in the appropriate bargaining unit.5 2. We do not agree, however, with the judge's finding that the licensed practical nurses (LPNs) formerly included in the predecessor employer's certified unit and currently employed at the Care Center are supervisors within the meaning of Section 2(11) of the Act. Accordingly, we reverse the judge's finding that the LPNs are not to be included in the appropriate bargaining unit.It is well established that the burden of proving supervisory status is upon the party asserting it.6 Thus, the burden was on the Respondent to establish the supervisory status of the LPNs. We find that the Respondent failed to meet that burden.Section 2(11) of the National Labor Relations Act defines a supervisor as:. . . any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.The Care Center employs five LPNs, four of whom previously held the same position at the Home. The LPNs regularly serve as medication nurses and charge nurses in both of the Care Center's wings. The judge1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.2 We shall modify the judge's recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (1996). In addition, the judge recommended that the Board issue a broad order requiring the Respondent to cease and desist from violating the Act ''in any other manner.'' We, however, do not find the Respondent's conduct in this case egregious enough to warrant the issuance of such an order. Accordingly, we are issuing a narrow cease-and-desist order requiring the Respondent to cease and desist from violating the Act ''in any like or related manner.'' See Hickmott Foods, 242 NLRB 1357 (1979). Finally, the judge incorrectly used the formula in F. W. Woolworth Co., 90 NLRB 289 (1950), for computation of amounts necessary to make employees whole for any losses they suffered as a result of the Respondent's unilateral changes in employee terms and conditions of employment. The proper formula for such computation in the current situation appears in Ogle Protection Service, 182 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).3 In addition to the reasons articulated by the judge for finding that the single-employer status of all three of the above-named entities was adequately pled, we also find that the issue was fully litigated. See Britt Metal Processing, 322 NLRB 421 (1996).4 The judge found that the Respondent's bargaining obligation began to run on September 16, 1994, ''a time when there was no dispute ...See the full content of this document
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