Los Gatos Meadows

LOS GATOS Episcopal Homes Foundation d/b/a/ Los Gatos Meadows and Service Employees International Union, Local No. 77, AFL-CIO. Case 32 CA 1822 September 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on May 29, 1979, by Service Employees International Union, Local No. 77, AFL- CIO, herein called the Union, and duly served on Episcopal Homes Foundation d/b/a Los Gatos Meadows, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a com- plaint on June 5, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on April 20, 1979, fol- lowing a Board election in Case 32-RC-472 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 8, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 14, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 22, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 29, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Official notice is taken of the record in the representation proceeding, Case 32-RC-472, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 5 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent contends that the certification of the Union in the underlying repre- sentation case is invalid on the basis (I) of its objec- tion therein, (2) that the Board denied it due process by not directing an evidentiary hearing thereon, and (3) that the Board denied it due process by sustaining the Regional Director's refusal to issue a complaint on charges2 filed by Respondent against the Union alleging the same allegations of union misconduct as contained in its objection. A review of the record herein, including the record in Case 32-RC-472. reveals that, pursuant to a Stipu- lation for Certification Upon Consent Election, an election was held on November 1, 1978, and resulted in a 28-to-24 vote in favor of the Union, with 5 chal- lenged ballots which were sufficient to affect the out- come of the election. Respondent and the Union filed timely objections to conduct affecting the results of the election. Re- spondent alleges that the Union threatened employ- ees with injury and harm if they failed to assist the Union to win the election. The Union made the fol- lowing allegations: Respondent placed ineligible em- ployees on the Excelsior list; threatened employees with loss of employment if they supported the Union; made promises of benefits to employees to not sup- port the Union or vote for the Union; singled out union adherents and publicly insulted them; made material misrepresentation of fact concerning the Union and threatened to close the home if the Union won. The Union also alleged that the Board agent held the election at a site and in a manner which created an atmosphere of confusion, surveillance, and intimidation. On November 30, 1978, after investigation of the challenged ballots, the Regional Director issued his Recommendation on Challenged Ballots, in which it was recommended that all five challenged ballots be opened and counted, and that a revised tally of bal- lots be issued. Thereafter, Respondent filed excep- tions to the Regional Director's Recommendation on Challenged Ballots. 2 Case 32-CB-375. 245 NLRB No. 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 30, 1979, the Board issued a Decision and Order Directing the Regional Director To Open and Count Challenged Ballots. The five challenged ballots were opened and counted on February 6. 1979, and a revised tally of ballots was issued which resulted in a 29-to-28 vote in favor of the Union. Subsequently, the Union withdrew its objections. On February 23, 1979, the Acting Regional Direc- tor issued his Report and Recommendations on Ob- jections in which he determined that Respondent's objection was without merit, and recommended that a certification of representative be issued to the Union. Respondent filed timely exceptions to the Re- port and Recommendations on Objections, reiterating its objection and requesting a hearing. On April 20, 1979, the Board issued its Decision and Certification of Representative, adopting the Regional Director's findings and recommendations.' It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation with its place of business in Los Gatos, California, is engaged in the operation of a nonprofit retirement center. During the past calendar year, Respondent received gross rev- enues in excess of $500,000, and purchased and re- 3 Not reported in volumes of Board Decisions. 4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). ceived, in interstate commerce, materials and supplies valued in excess of $50,000 from points outside the State of California. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. rTH I.ABOR ORGANIZATION INVO.VEI) Service Employees International Union, Local No. 77, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. TE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by the Employer in the nursing, housekeeping, maintenance and dietary departments at the Employer's 110 Wood Road, Los Gatos, California facility; excluding office clerical employees, registered nurses, guards and supervisors as defined in the Act. 2. The certification On November 1, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 32, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on April 20, 1979, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 21, 1979, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about May 8, 1979, and continuing at all times thereafter to 6 LOS GATOS MEADOWS date, Respondent has refused, and continues to re- fuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 8, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFEC'T OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Episcopal Homes Foundation d/b/a Los Gatos Meadows is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local No. 77, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by the Employer in the nursing, housekeeping, maintenance, and dietary de- partments at the Employer's 110 Wood Road, Los Gatos, California, facility, excluding office clerical employees, registered nurses, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 20, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 8, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Epis- copal Homes Foundation d/b/a Los Gatos Mead- ows, Los Gatos, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Service Employees Inter- national Union, Local No. 77, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All employees employed by the Employer in the nursing, housekeeping, maintenance and dietary departments at the Employer's 110 Wood Road, Los Gatos, California facility, excluding office 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical employees, registered nurses, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representation of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its 110 Wood Road, Los Gatos, Califor- nia, facility copies of the attached notice marked "Appendix."5 Copies of said notice, on forms pro- vided by the Regional Director for Region 32, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Ser- vice Employees International Union, Local No. 77, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees inthe bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed by the Employer in the nursing, housekeeping, maintenance and dietary departments at the Employer's 110 Wood Road, Los Gatos, California facility, ex- cluding office clerical employees, registered nurses, guards and supervisors as defined in the Act. EPISCOPAL HOMES FOUNDATION D/B/A Los GATOS MEADOWS 8