2850 Grand Island Boulevard Operating Company, LLC d/b/a/ Elderwood at Grand Island,

NOTICE: This opinion is subject to formal revision before publication in the bound 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.

2850 Grand Island Boulevard Operating Company, LLC d/b/a Elderwood at Grand Island and 1199 SEIU United Healthcare Workers East. Case 03–CA–193859

July 21, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

This is a refusal-to-bargain case in which the Respondent is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge filed on February 28, 2017, by 1199 SEIU United Healthcare Workers East (the Union), the General Counsel issued the complaint on May 1, 2017, alleging that 2850 Grand Island Boulevard Operating Company, LLC d/b/a Elderwood at Grand Island (the Respondent) has violated Section 8(a)(5) and

(1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 03–RC–184298. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer and amended answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses.

On May 18, 2017, the General Counsel filed a Motion for Summary Judgment. On May 19, 2017, 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 refusal to bargain, but contests the validity of the Union’s certification of representative on the basis of its contentions, raised and rejected in the underlying representation proceeding, that the certified unit includes supervisory employees outside the coverage of the Act, and that the alleged supervisory employees, the Union, and its supporters created an atmosphere of fear and reprisal by engaging in inappropriate conduct.¹

¹ In addition, the Respondent argues for the first time in its response to the Notice to Show Cause that the challenged ballots were prematurely opened and counted on January 13, 2017, before the Respondent’s time to file its Request for Review had expired and, thus, before the issue of supervisory status was fully resolved. The Respondent could have, but did not, raise this issue before the Board in the underly-

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.²

On the entire record, the Board makes the following FINDINGS OF FACT

1. JURISDICTION

   At all material times, the Respondent has been a corporation with an office and place of business in Grand Island, New York, where it has been engaged in the operation of a nursing home.

   Annually, in conducting its business operations described above, the Respondent derived gross revenues in excess of $100,000 and purchased and received at its Grand Island, New York facility goods valued in excess of $5000 directly from points located outside the State of New York.

   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 a healthcare institution within the meaning of Section 2(14) 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 representation election held on October 6, 2016, the Union was certified on February 2, 2017,³ as

      ing representation proceeding. Therefore, we find that the Respondent’s assertion does not raise any genuine issue of material fact warranting a hearing.

      ² The Respondent’s request that the complaint be dismissed is therefore denied.

      Chairman Miscimarra agreed with the denial of review in the underlying representation proceeding but noted that he disagreed with and disclaimed reliance on certain statements in the Acting Regional Director’s Supplemental Decision and Order on Challenged Ballots and Objections, with respect to disregarding certain unrebutted evidence. While he remains of that view, Chairman Miscimarra agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice proceeding and that summary judgment is appropriate, with the parties retaining their respective rights to litigate relevant issues on appeal.

      ³ By unpublished Order dated April 21, 2017, the Board denied the Respondent’s request for review of the Acting Regional Director’s

      the exclusive collective-bargaining representative of the employees in the following appropriate unit:

      INCLUDED: All full-time and regular part-time and per diem service and maintenance and technical employees including...